20-3230 Pomavilla-Zaruma v. Garland

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

AMENDED SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 12th day of August, two thousand twenty-four.

PRESENT: MYRNA PÉREZ, ALISON J. NATHAN, SARAH A. L. MERRIAM, Circuit Judges. _____________________________________

Rosa Elvira Pomavilla-Zaruma

Petitioner,

v. No. 20-3230

Merrick B. Garland, United States Attorney General

Respondent.

_____________________________________ FOR PETITIONER: Reuben S. Kerben, Esq., Kerben Law Firm, P.C., Kew Gardens, NY.

FOR RESPONDENT: Liza S. Murcia (Brian M. Boynton, Acting Assistant Attorney General, Anthony C. Payne, Assistant Director, Melissa Neiman-Kelting, Assistant Director, W. Manning Evans, Senior Litigation Counsel, on the briefs), Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals (BIA) decision and petition for rehearing, IT IS HEREBY

ORDERED, ADJUDGED, AND DECREED that the petition for rehearing is

GRANTED, our prior decision is VACATED, and we REMAND the case for

further proceedings consistent with this order.

Petitioner Rosa Elvira Pomavilla-Zaruma, a native and citizen of Ecuador,

seeks review of an August 24, 2020 decision of the BIA affirming an August 29,

2018 decision of an Immigration Judge (IJ) denying her application for asylum,

withholding of removal, and relief under the Convention Against Torture (CAT).

In re Rosa Elvira Pomavilla-Zaruma, No. A 206 506 589 (B.I.A. Aug. 24, 2020), aff’g

2 No. A 206 506 589 (Immig. Ct. N.Y. City Aug. 29, 2018). After we issued our

opinion in this matter, Pomavilla-Zaruma v. Garland,

(2d Cir. 2023), the

government petitioned for rehearing. In that petition, the government argued

that our application of circuit precedent impermissibly imposed judge-made

procedural rules on the agency. It also argued for the first time that this case

should be remanded to the BIA because the agency failed to apply its own

precedent. We agree with the government that remand is warranted for the

agency to apply its precedent properly in the first instance. We therefore grant

the government’s petition on that basis, vacate our previous judgment, and issue

the following order in this case. We assume the parties’ familiarity with the

underlying facts, procedural history, and issues on appeal, to which we refer only

as necessary to explain our decision.

I. Background

In May 2013, Pomavilla-Zaruma attempted to enter the United States

without valid entry documents. Border patrol agents apprehended her and, by

her account, “started hitting [her] on the back with. . . something they carry on

their belts.” Certified Administrative Record (CAR) at 145. The following day,

border patrol agents interviewed her. When asked the “purpose for [her] entry

3 into the United States,” she answered “[t]o reside and seek employment and

continue my education.” Id. at 135. When asked whether she feared persecution

or torture if she was sent back to Ecuador, Pomavilla-Zaruma answered “[n]o.”

Id. at 136. She was placed in removal proceedings, conceded removability, and

timely applied for asylum, withholding of removal, and relief under the

Convention Against Torture.

The following year, in 2014, Pomavilla-Zaruma completed a credible fear

interview where she alleged that a man in her home country, whom she identified

by name, began pursuing her and trying to inappropriately touch her when she

was a child, and that he began raping her when she was a teenager. She further

alleged that the man had threatened her mother, that police would not protect her

because she was indigenous, and that she could not relocate because indigenous

people were not permitted to move freely in Ecuador.

The asylum officer asked Pomavilla-Zaruma whether she had indicated in

her border interview that she was not afraid to return to Ecuador. She answered

that she “couldn’t really understand” the border patrol officer because “[m]ost of

it was in English.” CAR at 29. She also told the asylum officer about her

experience entering the United States the day before the border interview,

4 explaining that she was “very scared” because “one officer had hit [her].” Id.

The asylum officer then found Pomavilla-Zaruma to have a credible fear of

persecution.

In 2018, Pomavilla-Zaruma testified before an IJ and echoed her claims from

her credible fear interview. The government cross-examined Pomavilla-Zaruma

about the border interview, specifically questioning why she had stated that she

came to the United States for employment and education. She explained: “Well,

to be honest with you, that day I was very nervous. I couldn’t really understand

much, and they were only talking in English.” Id. at 123. The IJ expressed

skepticism of that explanation, and Pomavilla-Zaruma’s counsel responded that

“she is somewhat confused and was confused at the time of the [border]

interview.” Id. at 129.

The IJ denied all relief because he found Pomavilla-Zaruma to be

noncredible on two grounds. First, the responses she gave during the border

interview about coming to the United States for employment and education and

not fearing persecution were inconsistent with her later account of fleeing to the

United States to escape persecution. Second, her testimony that the interview

was conducted in English was “simply unbelievable” because the record of the

5 interview stated that it was conducted in Spanish and because border interviews

are generally conducted in the interviewee’s native language. CAR at 88.

Pomavilla-Zaruma appealed to the BIA, which affirmed the IJ’s credibility

decision on similar grounds in 2020. In addition to challenging the adverse

credibility finding, Pomavilla-Zaruma claimed for the first time that the border

interview record was improperly admitted into evidence at the IJ hearing. The

BIA rejected that argument as waived and also rejected it on the merits.

Pomavilla-Zaruma timely petitioned this Court for review.

On August 30, 2023, we issued an opinion, Pomavilla-Zaruma v. Garland,

(2d Cir. 2023), granting Pomavilla-Zaruma’s petition and remanding to

the BIA. We held that the BIA correctly determined that Pomavilla-Zaruma

waived any challenge to the admission of the border interview record. However,

we held that the agency failed to adequately consider the reliability of the border

interview before relying on it to find her not credible, applying Ramsameachire v.

Ashcroft,

(2d Cir. 2004), which sets out certain factors for

evaluating the reliability of such interviews.

The government then filed its petition for rehearing, arguing that our

application of Ramsameachire impermissibly imposed judge-made procedural

6 rules on the agency and overlooked intervening BIA precedent on the use of

border interviews in credibility determinations in light of statutory amendments

postdating Ramsameachire. The government noted—for the first time—that the

agency in this case never applied that BIA precedent and requested a remand for

the BIA to do so. We agree that the agency should apply its own precedent

regarding the reliability of border interviews in the first instance and we remand

for that purpose.

II. The BIA’s Failure to Address Its Precedent

We have consistently held that the agency is required to follow its own

precedent, and we have remanded when it has failed to do so. See Paucar v.

Garland,

(2d Cir. 2023); Ojo v. Garland,

(2d Cir. 2022).

Here, as the government concedes, the agency in this case failed to address or

apply Matter of J-C-H-F-,

(BIA 2018), which was directly relevant

to its consideration of Pomavilla-Zaruma’s interview and credibility. We

therefore grant the government’s request to remand for the agency to apply its

own precedential opinion in considering Pomavilla-Zaruma’s credibility. See

Ojo,

(“[T]he agency’s failure to follow its own precedent . . . requires

remand[.]”); cf. Singh v. U.S. Dep’t of Justice,

(2d Cir. 2006) (“[A]n

7 administrative agency must adhere to its own regulations.”) (citing United States

ex rel. Accardi v. Shaughnessy,

(1954));

(g).

III. Admission of the Border Interview Record

In addition, we again reject Pomavilla-Zaruma’s argument that her border

interview record was improperly admitted into evidence at her IJ hearing. When,

as in this case, the BIA declines to consider an issue because it is waived, “this

Court’s review is limited to whether the BIA erred in deeming the argument

waived.” Prabhudial v. Holder,

, 555–56 (2d Cir. 2015). “[T]he BIA

may refuse to consider an issue that could have been, but was not, raised before

an IJ,”

, and here, the BIA was correct as a factual matter that neither

Pomavilla-Zaruma nor her counsel objected to the border interview record’s

admission. Therefore, the BIA did not err in deeming Pomavilla-Zaruma’s

evidentiary argument waived. Moreover, Pomavilla-Zaruma did not address the

BIA’s waiver finding in her petition to this Court and thereby abandoned any

challenge to it. See Yueqing Zhang v. Gonzales,

, 545 n.7 (2d Cir. 2005).

* * *

For the foregoing reasons, the government’s petition for rehearing is

GRANTED, our prior decision is VACATED, and we REMAND the case for

8 further proceedings consistent with this order. This panel retains jurisdiction to

rule, if necessary, on the issues raised in a petition for review after the disposition

of the remand. See Shi Liang Lin v. DOJ,

, 192 (2d Cir. 2005) (retaining

jurisdiction to decide issues on appeal following remand to the BIA); cf. United

States v. Jacobson,

, 21–22 (2d Cir. 1994) (retaining jurisdiction while

remanding to the district court for supplementation of the record). Pomavilla-

Zaruma may return the case to this Court by notifying the Clerk of the Court

within thirty days of entry of a final BIA order on remand. Such notification will

not require the filing of a new notice of appeal. If notification occurs, the matter

will be referred automatically to this panel for disposition.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

9