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Supreme Court Chastizes Ninth Circuit for Failing to Remand Asylum Case to BIA

by Carl R. Baldwin

In a recent Per Curiam opinion the U.S. Supreme Court gave the Ninth Circuit a lecture on procedural matters. It was not a good day for the Guatemalan asylum applicant, or for the Ninth Circuit. INS v. Orlando Ventura, No. 02-29 (Sup. Ct. Nov. 4, 2002).

The Guatemalan, Fredy Orlando Ventura, had entered the United States without inspection in 1993. In 1995 deportation proceedings were commenced. The asylum application alleged fear of persecution on account of political opinion (the guerrillas were convinced that he was pro-government, since close relatives were in the military, and the applicant had received death threats). In 1998 the immigration judge denied the application for asylum and withholding of deportation. She noted that relatives of the applicant had been targeted by the guerrillas, and one had been killed. She nevertheless concluded that the applicant had failed to show that the guerrillas “interest”” in him was on account of political opinion. As an alternative reason for denying the application, the immigration judge held that a significant change of conditions in Guatemala meant that whatever motivation the guerrillas might have had to harm the applicant no longer existed.The BIA considered the matter de novo. It agreed with the IJ that the applicant had not shown that persecution was on account of political opinion, and found it unnecessary to address the question of changed country conditions.

The case was appealed to the Ninth Circuit. Both parties requested that it be remanded to the BIA to consider the question of changed country conditions. The court decided that question on its own, holding that the evidence did not show a change sufficient to eliminate the applicant’s fear of persecution. It would not remand on the issue of changed circumstances, it said, “when it is clear that we would be compelled to reverse the BIA’s decision if the BIA decided the matter against the applicant.” That is strong language, and the Supreme Court found it entirely unacceptable: “We agree with the Government that the Court of Appeals should have remanded the case to the BIA. And we summarily reverse its decision not to do so.”

The Government, in its argument, had berated the Ninth Circuit as something of a renegade. The error (of not remanding) is a “recurring error that puts the Ninth Circuit in conflict with other courts of appeal, which generally respect the BIA’s role as a fact-finder by remanding to the BIA in similar situations.” The Supreme Court, like a professor of administrative law, proceeded to lecture the Ninth Circuit: “Generally speaking, a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands. This principle has obvious importance in the immigration context. The BIA has not yet considered the ‘changed circumstances’ issue. And every consideration that classically supports the law’s ordinary remand requirement does so here. The agency can bring its expertise to bear upon the matter; it can evaluate the evidence; it can make an initial determination; and, in doing so, it can, through informed discussion and analysis, help a court later determine whether its decision exceeds the leeway that the law provides. These basic considerations indicate that the Court of Appeals committed clear error here. It seriously disregarded the agency’s legally-mandated role. Instead, it independently created potentially far-reaching legal precedent about the significance of political change in Guatemala, a highly complex and sensitive matter. And it did so without giving the BIA the opportunity to address the matter in the first instance in light of its own expertise. “

It is disconcerting to see the Ninth Circuit, so much admired by immigration lawyers for its sensitivity to the rights of asylum seekers, be so severely reprimanded by the Supreme Court. But it is important to point out that the Per Curiam opinion has no effect whatsoever on the substantive law of asylum. All it does is underline, for the Ninth Circuit and the Circuits generally, the deference due to the administrative agency as the crucial fact-finder. Asylum law continues to be alive and well, as are the hopes and aspirations of asylum applicants.

About The Author

Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. His work with clients has included asylum applications, deportation defense, visa processing, adjustment of status, and naturalization. He has also worked to implement special laws, such as the 1986 "amnesty" (The Immigration Reform and Control Act), and the 1998 Haitian reform act (The Haitian Refugee Immigration Fairness Act). Mr. Baldwin is the author of Immigration News Monthly. He can be reached by e-mail at

He has written a book on immigration law, called "Immigration Questions and Answers," Allworth Press, 2002. The book, which contains essential background information about how the immigration law works, can be ordered online from Allsworth Press at:

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.