Tomas Bartolome v. Jefferson Sessions, III , 904 F.3d 803 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TOMAS BARTOLOME, AKA T.B.H., No. 15-71666
Petitioner,
Agency No.
v. A074-826-493
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
THOMAS BARTOLIMAE-HERNANDEZ, No. 15-72671
Petitioner,
Agency No.
v. A074-826-493
JEFFERSON B. SESSIONS III, Attorney
General, OPINION
Respondent.
On Petition for Review of an
Immigration Judge’s Decision
Argued and Submitted February 15, 2018
San Francisco, California
Filed September 14, 2018
2 BARTOLOME V. SESSIONS
Before: Carlos T. Bea and N. Randy Smith, Circuit Judges,
and David C. Nye,* District Judge.
Opinion by Judge N.R. Smith
SUMMARY**
Immigration
The panel denied Tomas Bartolome’s petition for review
of an immigration judge’s decision affirming an asylum
officer’s negative reasonable fear determination in
reinstatement removal proceedings, and granted and
remanded his petition for review of the immigration judge’s
rejection for lack of jurisdiction of his motion to reopen
reasonable fear proceedings.
The panel rejected Bartolome’s contention that the
asylum officer deprived him of due process by providing him
a Spanish-language interpreter, rather than an interpreter in
his native language Chuj, because Bartolome advised the
asylum officer that he understood “a lot” of Spanish, did not
indicate that he had problems understanding the interpreter,
stated that the asylum officer’s summary of his testimony was
correct, and had an opportunity to correct any errors or
submit additional evidence on review before the IJ.
*
The Honorable David C. Nye, United States District Judge for the
District of Idaho, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BARTOLOME V. SESSIONS 3
The panel also rejected Bartolome’s argument that the IJ
deprived him of due process, concluding that the IJ gave
Bartolome sufficient time to prepare for his hearing and
submit evidence, and adequately considered Bartolome’s
testimony and the evidence he submitted both to the asylum
officer and the IJ. The panel noted that reasonable fear
review proceedings are expedited and not full evidentiary
hearings, and IJs are not required to provide detailed
decisions outlining all the claims raised by the alien. The
panel also rejected Bartolome’s claim of IJ bias.
The panel held that substantial evidence supported the IJ’s
determination that Bartolome failed to demonstrate a
reasonable fear of persecution, due to the lack of nexus
between any harm and a protected ground, or a reasonable
fear of torture.
The panel held that the IJ abused his discretion in denying
on jurisdictional grounds Bartolome’s motion to reopen
because the IJ failed to recognize that he had at least sua
sponte jurisdiction to reopen proceedings. The panel
remanded for the IJ to exercise discretion whether to grant
reopening.
4 BARTOLOME V. SESSIONS
COUNSEL
Siovhan Sheridan (argued), Sheridan Law Office P.C.,
Tucson, Arizona, for Petitioner.
Nancy K. Canter (argued), Trial Attorney; Keith I. McManus
and Cindy S. Ferrier, Assistant Directors; Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent.
OPINION
N.R. SMITH, Circuit Judge:
Aliens subject to reinstated orders of removal are placed
in reasonable fear screening proceedings, if they express fear
of persecution or torture in their country of removal. 8 C.F.R.
§§ 241.8(e), 1241.8(e). This process consists of an interview
before a United States Citizenship and Immigration Services
(“USCIS”) asylum officer to make a preliminary
determination of reasonable fear. If the asylum officer makes
a negative reasonable fear determination, the alien may
request a de novo review hearing by an immigration judge
(“IJ”) of the asylum officer’s determination. These
reasonable fear proceedings, as outlined in 8 C.F.R.
§§ 208.31, 1208.31, are intended to provide a fair
determination of whether an alien has a reasonable fear of
persecution or torture, which fear would require the alien to
be referred to an IJ to review eligibility for withholding of
removal or relief under the Convention Against Torture
(“CAT”). However, these reasonable fear proceedings are to
be streamlined, not intended to have full evidentiary hearings,
because the alien continues to be subject to the expedited
BARTOLOME V. SESSIONS 5
removal process used for previously removed aliens with
reinstated orders of removal. Thus, an IJ’s failure specifically
to address all of the evidence and claims before him or her
(during the reasonable fear review proceedings) does not
violate the alien’s due process rights. Nevertheless, an IJ’s
failure to recognize that he or she has sua sponte authority to
reopen any matter in which he or she made a decision
(including reasonable fear review hearings) is an abuse of
discretion.
ADMINISTRATIVE FRAMEWORK
Congress has authorized the expedited removal of aliens
if “an alien has reentered the United States illegally after
having been removed . . . under an order of removal.”
8 U.S.C. § 1231(a)(5). Congress further directed that the
alien’s prior removal order “is not subject to being reopened
or reviewed, the alien is not eligible and may not apply for
any relief under this chapter, and the alien shall be removed
under the prior order at any time after the reentry.” Id.
Despite this directive, Congress has also recognized that
it must make exceptions for aliens who demonstrate a clear
probability of persecution or torture.1 See 8 U.S.C.
§ 1231(b)(3). Thus, even an alien subject to expedited
removal may still request withholding of removal or relief
under CAT. 8 C.F.R. §§ 241.8(e), 1241.8(e), 208.31(a),
1208.31(a). Accordingly, the Attorney General established
1
This process is also applied to aliens who have been convicted of an
aggravated felony. See 8 U.S.C. § 1228(b); 8 C.F.R.§ 238.1; see also
Gomez-Velazco v. Sessions, 879 F.3d 989, 992 (9th Cir. 2018).
6 BARTOLOME V. SESSIONS
regulations to screen for aliens who may fall into this
category.2 See 8 C.F.R. §§ 208.31, 1208.31.
The regulations provide that, if a previously removed
alien expresses a fear of persecution or torture, the
Department of Homeland Security (“DHS”) shall refer the
alien to “an asylum officer for a reasonable fear
determination. In the absence of exceptional circumstances,
this determination will be conducted within 10 days of the
referral.” Id. §§ 208.31(b), 1208.31(b). The statute outlines
that an alien has “a reasonable fear of persecution or torture
if the alien establishes a reasonable possibility that he or she
would be persecuted on account of his or her race, religion,
nationality, membership in a particular social group or
political opinion, or a reasonable possibility that he or she
would be tortured in the country of removal.” Id.
§§ 208.31(c), 1208.31(c).
To make the reasonable fear determination, “[t]he asylum
officer shall conduct the interview in a non-adversarial
manner, separate and apart from the general public.” Id.
After the interview, the asylum officer is required to “create
a written record of his or her determination, including a
summary of the material facts as stated by the applicant, any
2
The regulations were “[m]odeled on the credible fear screening
mechanism . . . [to] allow for the fair and expeditious resolution of such
claims without unduly disrupting the streamlined removal processes
applicable to these aliens.” Regulations Concerning the Convention
Against Torture, Interim Rule with Request for Comments, 64 Fed. Reg.
8478, 8479 (Feb. 19, 1999); see also EOIR, Office of the Chief
Immigration Judge, Operating Policies and Procedures Memorandum
(OPPM) No. 99-5 ¶ IV(C) (May 14, 1999) (located at
https://www.justice.gov/sites/default/files/eoir/legacy/1999/06/01/99_5.
pdf).
BARTOLOME V. SESSIONS 7
additional facts relied on by the officers, and the officer’s
determination of whether, in light of such facts, the alien has
established a reasonable fear of persecution or torture.” Id.
During the reasonable fear determination, the asylum
officer elicits “all information relating both to fear of
persecution and fear of torture.” Reasonable Fear of
Persecution & Torture Determinations, INS AOBT 8/6/2008
*21, 2008 WL 7226112 (Aug. 6, 2008).3 Based on this
evidence, the asylum officer determines whether there is a
“reasonable possibility” that the alien established he or she
would be persecuted on account of a protected ground or
tortured in his or her country of removal.4 Id. Thus, the
asylum officer must assess whether the alien “demonstrat[ed]
that he has a ‘subjectively genuine and objectively
reasonable’ fear of future persecution.” Bringas-Rodriguez
v. Sessions, 850 F.3d 1051, 1062 (9th Cir. 2017) (en banc)
(citation omitted). “The subjective component is satisfied by
credible testimony that the applicant genuinely fears
persecution.” Zhao v. Mukasey, 540 F.3d 1027, 1029 (9th
Cir. 2008). “The objective prong is satisfied either by . . . a
showing of past persecution, or by a showing of a good
reason to fear future persecution based on credible, direct,
and specific evidence in the record of facts that would support
a reasonable fear of persecution.” Id. (internal quotation
marks and citation omitted). “Even a ten percent chance of
3
INS Asylum Officer Basic Training.
4
The reasonable fear screening standard “is the same standard
required to establish a ‘well-founded fear’ of persecution in the asylum
context.” Reasonable Fear of Persecution & Torture Determinations, INS
AOBT 8/6/2008 *4.
8 BARTOLOME V. SESSIONS
future persecution may establish a well-founded fear.” Id. at
1029–30.
If an asylum officer concludes that the alien has a
reasonable fear, the officer refers the alien to an IJ for a full
consideration of a withholding of removal claim. Id.
§§ 208.31(e), 1208.31(e). However, if the asylum officer
concludes that the alien does not have a reasonable fear, the
asylum officer “shall inquire whether the alien wishes to have
an [IJ] review the negative decision.” Id. §§ 208.31(f),
1208.31(f). If an alien requests review by an IJ, the IJ shall
be provided with “[t]he record of determination, . . . the
asylum officer’s notes, the summary of the material facts, and
other materials upon which the determination was based.” Id.
§§ 208.31(g), 1208.31(g). The IJ should conduct the review
within ten days of the alien’s request. Id.
This “reasonable fear review hearing” is conducted by an
IJ. It “is not as comprehensive or in-depth as a withholding
of removal hearing in removal proceedings.” Immigration
Court Practice Manual, ch. 7.4(e)(iv)(E).5 “[I]t is a [de novo]
review of the DHS asylum officer’s decision.” Id.; OPPM
No. 99-5 ¶ IV(D) (requiring de novo review). “Either party
may introduce oral or written statements, and the court
provides an interpreter if necessary.” Immigration Court
Practice Manual, ch. 7.4(e)(iv)(E). After this review hearing,
the IJ may concur with the asylum officer and return the case
to DHS for removal. 8 C.F.R. §§ 208.31(g)(1),
1208.31(g)(1). In that case, the alien has no right to appeal
the IJ’s decision to the Board of Immigration Appeals. Id.
Nonetheless, the alien may appeal the IJ’s negative fear
5
(located at https://www.justice.gov/eoir/pages/attachments/
2015/02/02/practice_manual_review.pdf)
BARTOLOME V. SESSIONS 9
determination to our court under 8 U.S.C. § 1252(a)(1), (5).
See Ayala v. Sessions, 855 F.3d 1012, 1018 (9th Cir. 2017).
If the IJ disagrees with the asylum officer, the alien is eligible
to apply for withholding of removal and relief under CAT.
Id. §§ 208.31(g)(2), 1208.31(g)(2).
PROCEDURAL HISTORY & FACTS
Tomas Bartolome is a native and citizen of Guatemala.
He first entered the United States in 1994 illegally and
without any governmental permission. He applied for
asylum, which was denied. He was thereafter deported from
the United States in February 2008. In June 2008, Bartolome
attempted to reenter the United States. However, DHS found
him to be inadmissible and ordered his expedited removal.
After removal, he remained in Guatemala until 2015.
In February 2015, Bartolome illegally reentered the
United States. In March 2015, DHS served Bartolome a
Notice of Intent/Decision to Reinstate Prior Order. In
response, Bartolome expressed a fear of persecution or torture
if returned to Guatemala. Based on his asserted fear, he was
referred to an asylum officer for a reasonable fear interview.
On May 6, 2015, Bartolome and his attorney appeared
before the asylum officer, and the asylum officer interviewed
Bartolome. Bartolome explained to the officer that he feared
returning to Guatemala, because gangs had extorted him. He
claimed that gang members thought he had money, because
his family resided in the United States.6 Bartolome also
6
Bartolome’s wife is a legal permanent resident, and two of his five
children are United States citizens.
10 BARTOLOME V. SESSIONS
feared that he could be subject to persecution because his
brother was involved in politics in Guatemala.
After the interview, the asylum officer issued a negative
reasonable fear determination. Although the asylum officer
found Bartolome credible, he concluded that Bartolome had
failed to establish a reasonable possibility that he would be
persecuted or subjected to torture upon his return. Bartolome
then requested that an IJ review the asylum officer’s negative
reasonable fear determination. On May 14, 2015, the matter
was referred to an IJ. The initial reasonable fear review
hearing was scheduled for May 19, 2015. However, it was
continued until May 22, 2015, to allow Bartolome’s attorney
time to prepare and to secure an appropriate interpreter. Prior
to the hearing, Bartolome submitted additional documents in
support of his claim that he has a reasonable fear of
persecution or torture in Guatemala.
On May 22, 2015, Bartolome appeared with counsel
before the IJ. Bartolome testified that he feared harm in
Guatemala by local residents, who blamed him for damages
caused by a civil engineering water project he was elected to
oversee. He also claimed again that gang members had
extorted him, because they believed he had money. After the
IJ finished asking Bartolome questions, he asked Bartolome’s
counsel whether “there’s anything else she would like [him],
as the Judge, to consider.” Counsel referenced letters and
statements and death threats. The IJ further questioned
Bartolome regarding the threats. The IJ then inquired again
whether there were any other areas of inquiry. Bartolome’s
counsel said there were none.
At that point, the IJ concluded that the asylum officer
correctly decided that Bartolome was ineligible for
BARTOLOME V. SESSIONS 11
withholding of removal. The IJ explained that Bartolome was
not eligible for withholding of removal based on the evidence
presented. Specifically, the IJ noted that withholding of
removal was not available, because (1) the threats by villagers
surrounding the damages caused from the water project and
the threats by gang members have no nexus to a protected
ground, and (2) there was no evidence that the government
would not help him with the villagers or the gangs.
The IJ then issued the following written statement:
The Court concurs in the DHS Reasonable
Fear Determination because Respondent’s
fear of possible civil liability for a village
project he was elected to oversee, and fear of
being harmed or killed by gang members who
tried to extort money have no connection or
nexus to a protected ground and there is no
danger or evidence of torture risk from
government or with its acquiescence. . . .
The case is returned to DHS for removal of
the alien. This is a final order. Pursuant to 8
C.F.R. § 1208.31(g)(1), no administrative
appeal is available.
On August 11, 2015, Bartolome filed a motion to reopen
with the IJ. The IJ rejected the motion to reopen, concluding
that “[t]he court has no authority over this motion. It is
returned. Only DHS has authority to consider this motion.”
Bartolome also separately requested that the USCIS
reconsider its findings. USCIS responded that “reasonable
fear screening determinations are not subject to motions to
12 BARTOLOME V. SESSIONS
reopen or reconsider”; while it recognized it had sua sponte
authority to reopen, it declined to do so in this case.
Bartolome timely appealed the IJ’s negative reasonable
fear determination, and the IJ’s rejection of his motion to
reopen.
STANDARD OF REVIEW
We have jurisdiction to review “[a]n IJ’s negative
determination regarding the alien’s reasonable fear” under
8 C.F.R. § 208.31(g)(1). Andrade-Garcia v. Lynch, 828 F.3d
829, 833 (9th Cir. 2016). We review the IJ’s determination
that the alien did not establish a reasonable fear of
persecution or torture for substantial evidence. Id.
“Therefore, we must uphold the IJ’s conclusion that
[Bartolome] did not establish a reasonable fear of torture
unless, based on the evidence, ‘any reasonable adjudicator
would be compelled to conclude to the contrary.’” Id.
(quoting Ai Jun Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir.
2014)).7
DISCUSSION
I. Reasonable fear determination before the asylum
officer.
Bartolome asserts that he was deprived his due process
rights and a fair hearing before the asylum officer, because he
7
The government argues that we should apply a more deferential
standard of review to the IJ’s negative reasonable fear determination.
However, we rejected this same argument in Andrade-Garcia, 828 F.3d
at 833–35.
BARTOLOME V. SESSIONS 13
was provided a Spanish-language interpreter rather than an
interpreter in his native language Chuj. We disagree.
First, a review of the asylum officer’s notes shows that
Bartolome indicated that he understood “a lot” of Spanish,
“but there [were] some words” he did not know. He also
consented to proceeding in Spanish and was provided a
Spanish-language interpreter. The asylum officer made it
clear that, if Bartolome did not understand something, he
should tell the asylum officer. Bartolome agreed. At the
conclusion of the hearing, the asylum officer asked
Bartolome whether he had any problems understanding the
interpreter, to which Bartolome stated he had none.8 The
asylum officer also read back the summary of Bartolome’s
testimony to Bartolome. When asked whether he had any
corrections or changes to make to the asylum officer’s
summary, Bartolome stated that the summary was correct and
did not request to add anything.
Although Bartolome now argues that he was unable to
present his whole story, he does not specifically indicate
(outside of vague references to his political activities) what
evidence he was unable to present. Further, the record does
not demonstrate that Bartolome was prevented (based on the
interview in Spanish) from providing the evidence that
establishes that he fears returning to Guatemala.
Second, even if there were evidence of error, any possible
error was or could have been remedied before the IJ in the
8
Bartolome now indicates that he did not understand all of the
questions asked of him. However, a review of the transcript does not
evince translation issues; Bartolome’s answers were detailed and
responsive to the questions asked.
14 BARTOLOME V. SESSIONS
reasonable fear review hearing. In this case, after the asylum
officer concluded Bartolome did not have a reasonable fear
of persecution or torture, Bartolome requested that an IJ
conduct a reasonable fear review hearing, which applies de
novo review. “De novo review means that the [IJ] does not
defer to the [asylum officer’s] ruling but freely considers the
matter anew, as if no decision had been rendered below.”
Dawson v. Marshall, 561 F.3d 930, 933 (9th Cir. 2009)
(alterations, quotation marks, and citation omitted). In
conducting the reasonable fear review hearing, the IJ
reviewed all of the previously produced evidence, along with
the asylum officers notes; heard additional testimony from
Bartolome in his native tongue; and accepted additional
documents supporting his claim. The IJ then issued his
decision after having considered all of the evidence.
Lastly, both the asylum officer and the IJ found
Bartolome to be credible and credited Bartolome’s testimony.
Bartolome was able to provide all additional details about his
reasonable fear of persecution to the IJ. Therefore, any
inability to present evidence before the asylum officer did not
prejudice Bartolome, because he had an opportunity to
present and did present his whole story to the IJ. Cf. Mathews
v. Eldridge, 424 U.S. 319, 333 (1976) (noting that due
process requires “the opportunity to be heard at a meaningful
time and in a meaningful manner” (citation and quotation
marks omitted)).
II. Reasonable fear review hearing before the IJ.
Aliens subject to removal under 8 U.S.C. § 1231(a)(5) are
only entitled to withholding of removal and CAT relief if they
express a reasonable fear of persecution or torture. The
regulations set forth the process by which asylum officers and
BARTOLOME V. SESSIONS 15
IJs assess an alien’s reasonable fear. Although previously
removed aliens in the United States are entitled to due process
protections, they are not entitled to all of the same protections
granted to aliens not previously removed.9 For example,
“[t]here is always a public interest in prompt execution of
removal orders: The continued presence of an alien lawfully
deemed removable undermines the streamlined removal
proceedings [the Illegal Immigration Reform and Immigrant
Responsibility Act (“IIRIRA”)] established, and permits and
prolongs a continuing violation of United States law.” Nken
v. Holder, 556 U.S. 418, 436 (2009) (internal quotation marks
and alterations omitted). However, the government has an
obligation not to remove persons who may be subject to
persecution or torture. Thus, the Attorney General set forth
streamlined procedures outlining the process for reasonable
fear proceedings. 64 Fed. Reg. at 8479, 8485. Bartolome
does not challenge the adequacy of the regulations; however,
he challenges the IJ’s implementation of them.
Bartolome alleges several due process violations
surrounding his reasonable fear review hearing before the IJ.
He asserts that (A) the IJ failed to allow adequate time for
Bartolome to obtain evidence; (B) the IJ did not consider the
evidence Bartolome submitted, did not consider Bartolome’s
testimony, and did not review and credit Bartolome’s
testimony before the asylum officer; and (C) the IJ violated
Bartolome’s right to a fair hearing by introducing the IJ’s
own biases about Guatemala. None of these claims have
merit.
9
Nothing precludes a previously removed alien from applying for
refugee status under 8 U.S.C. § 1157(c).
16 BARTOLOME V. SESSIONS
A. The regulations establish time deadlines for an IJ to
conduct a reasonable fear review hearing. See 8 C.F.R.
§ 1208.31(g) (requiring a hearing be conducted within
“10 days”); see also § 208.31(g). Although the regulations
allow for the IJ to extend the time of a hearing, an extension
is only allowed for “exceptional circumstances.” Id.
Reasonable fear review hearings were not envisioned to be
full evidentiary hearings, which occur in removal
proceedings. See 64 Fed. Reg. at 8479, 8485; see also
Immigration Court Practice Manual, ch. 7.4(e)(iv)(E) (“A
reasonable fear review hearing is not as comprehensive or in-
depth as a withholding of removal hearing in removal
proceedings.”). Rather, they are abbreviated proceedings to
ensure that an alien does not have a reasonable fear of
returning to his or her country of origin. Id.; see also
8 C.F.R. §§ 208.31(e), 1208.31(e) (explaining that the
purpose of the initial hearing is to determine whether the
alien is entitled to a “full consideration of the request for
withholding of removal”). Extensive proof is not needed;
rather an IJ need only determine whether there is at least a ten
percent chance that the alien “would be persecuted on
account of his or her race, religion, nationality, membership
in a particular social group or political opinion, or a
reasonable possibility that he or she would be tortured in the
country of removal.” See 8 C.F.R. §§ 208.31(c),
10
1208.31(c). Thus, although an IJ may allow an alien to
10
See also USCIS Policy & Procedural Memoranda, SUBJECT:
Guidance for Processing Reasonable Fear, Credible Fear, Asylum, and
Refugee Claims in Accordance with Matter of A-B-, PM-602-0162, *8,
2018 WL 3426212 (July 11, 2018) (noting that the “reasonable
possibility” standard is used as a “screening mechanism” to determine
whether the individual is entitled to a more thorough hearing).
BARTOLOME V. SESSIONS 17
submit evidence to support his or her claim, cf. 8 C.F.R.
§ 1003.42(c), the IJ is not required to do so.
In accordance with these guidelines, the IJ reviewed the
asylum officer’s file and allowed Bartolome to testify in his
native language and to present additional evidence (including
statements from his wife and brother) prior to making his
decision. Although Bartolome now argues that the IJ did not
allow him to present evidence at a hearing, we can find no
merit in that argument as Bartolome presented evidence at the
hearing. Bartolome also made no effort to call any other
witnesses. As to a prehearing statement, even assuming that
Bartolome attempted to file a prehearing statement (which is
not in the record), the IJ would have been within his or her
discretion to disallow it.
Bartolome was also provided more time than allowed by
the regulations. A short continuance was granted to obtain a
Chuj-language interpreter and to allow Bartolome’s counsel
to prepare. After the brief continuance was granted, neither
Bartolome nor his attorney requested additional time to
obtain supporting evidence.
B. Reasonable fear review hearings again are not full
evidentiary hearings. Like reinstatement orders, reasonable
fear review proceedings are intended to be expedited and
efficient. See Morales-Izquierdo v. Gonzales, 486 F.3d 484,
489–91 (9th Cir. 2007). In expedited proceedings (such as
these), IJs do not have the ability nor are they required to
provide detailed decisions outlining all the claims raised by
the alien. See Immigration Court Practice Manual, ch.
7.4(e)(iv)(E). Instead, they review the evidence provided by
the asylum officer, along with any new evidence or testimony
provided, and issue a “special order for reasonable fear
18 BARTOLOME V. SESSIONS
review proceedings.” OPPM No. 99-5 ¶ IV(D) (“order X8”).
Here, the IJ made his conclusions without addressing all the
evidence or claims before him. As a result, Bartolome
assumes the IJ ignored the evidence and hence asserts that the
IJ violated his right to a fair hearing. We disagree with this
assertion.
First, the IJ noted that he considered all of the evidence,
and concluded that he would not change the asylum officer’s
decision. We have no basis to assume that the IJ failed to
consider the evidence before him. Although the IJ did not
address all of the evidence and claims specifically, he
concluded that Bartolome’s activities and the incidents with
gang members had no connection or nexus to a protected
ground, and there was no “danger or evidence of torture risk”
with government acquiescence.11
Where, as here, the evidence in the record does not
compel a conclusion that the IJ erred in concluding that
Bartolome did not establish a reasonable fear of persecution,
Andrade-Garcia, 828 F.3d at 833, we cannot find
Bartolome’s due process claim that the IJ ignored evidence
has merit, cf. Larita-Martinez v. INS, 220 F.3d 1092, 1095–96
(9th Cir. 2000) (“[A]n alien attempting to establish that the
Board violated his right to due process by failing to consider
relevant evidence must overcome the presumption that it did
review the evidence.”). Reviewing for substantial evidence,
11
The IJ did not address the claim that Bartolome may be subjected
to persecution or torture based on his brother’s political activities. Even
though Bartolome did not raise his brother’s political activities before the
IJ, on a de novo review the claims raised before the asylum officer were
properly before the IJ. Because the IJ found that the asylum officer was
correct, we look to the asylum officer’s decision on this issue.
BARTOLOME V. SESSIONS 19
the record supports the IJ’s decision. Bartolome asserts three
separate reasons for fearing return to Guatemala: (1) gang
violence, (2) his participation in the water project, and (3) his
brother’s political activities.
Reviewing the testimony and the evidence submitted,
substantial evidence supports the conclusion that none of
these reasons provide a basis for withholding of removal.
First, gangs did not target Bartolome based on a protected
ground. Rather, the gangs targeted him because they
perceived him to have money, which we have not recognized
as a cognizable social group. See Ramirez-Munoz v. Lynch,
816 F.3d 1226, 1229 (9th Cir. 2016). Second, threats based
on Bartolome’s involvement in the installation of water pipes
and a sewer system are not persecution on a protected ground.
Although Bartolome attempts to couch the activity as politics,
this is not a “political opinion.” Cf. Zhiqiang Hu v. Holder,
652 F.3d 1011, 1017 (9th Cir. 2011). Finally, although an
imputed political opinion would be a basis for withholding of
removal, Bartolome failed to establish any threat of future
persecution based on his brother’s membership in the Mano
Duro Partido Party. His brother has not been harmed by the
opposition party, nor did Bartolome establish that he, himself,
was threatened or harmed by the opposition party.
Speculation on what could occur is not enough to establish a
reasonable fear. See Nagoulko v. INS, 333 F.3d 1012, 1018
(9th Cir. 2003). Similarly, Bartolome failed to provide any
evidence that he would be or was in danger of being tortured
with the acquiescence of the government.
C. Lastly, Bartolome argues that he was deprived of a
fair hearing, because the IJ displayed bias when he
commented that Bartolome might seek legal counsel with
regard to his liability for the water project. An alien “is not
20 BARTOLOME V. SESSIONS
denied a fair hearing merely because the [IJ] has a point of
view about a question of law or policy.” Matter of Exame,
18 I. & N. Dec. 303, 306 (BIA 1982). Even if the IJ erred in
commenting on how he thought Guatemalan civil liability
worked, any error was harmless. Further, substantial
evidence nonetheless supports the IJ’s conclusion that
Bartolome’s fear that the villagers would seek him out
because of damages caused by the water project is not a
protected ground.
III. Motion to Reopen
No statute or regulation specifically addresses whether an
alien may file a motion to reopen reasonable fear
proceedings. However, in Ayala v. Sessions, we concluded
that the IJ abused its discretion in not reconsidering the
petitioner’s motion for reconsideration of such proceedings.
855 F.3d at 1020–21. Although the petitioner in Ayala filed
a motion for reconsideration rather than a motion to reopen,
the procedures are the same for both motions. See 8 C.F.R.
§ 1003.23(b)(2), (3). Nothing in this regulation precludes an
alien from filing a motion to reopen before an IJ. To the
contrary, § 1003.23(b)(1) provides that an IJ has sua sponte
jurisdiction to reopen “any case in which he or she has made
a decision.”12 (emphasis added).
Here, Bartolome filed a motion to reopen before the IJ.
The IJ rejected the motion, concluding he lacked jurisdiction
to reopen the matter. This conclusion is contrary to our
holding in Ayala and thus was error. The IJ’s failure to
12
During oral argument, the government conceded that IJs have the
inherent authority to reconsider and reopen matters before them, including
reasonable fear proceedings.
BARTOLOME V. SESSIONS 21
recognize that he had at least sua sponte jurisdiction to reopen
proceedings was an abuse of discretion. See Singh v. Holder,
771 F.3d 647, 650, 653 (9th Cir. 2014) (noting that when the
BIA concludes that it lacks the authority to reopen, rather
than denying a motion to reopen as an exercise of discretion,
the panel has jurisdiction and remand is required). We
therefore remand the matter to the IJ to determine whether an
exercise of his jurisdiction is warranted.
Parties shall bear their own costs on appeal.
PETITION FOR REVIEW GRANTED IN PART;
DENIED IN PART.