PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 20-1705 _____________

Jorge Luis Valarezo-Tirado, Petitioner

v.

Attorney General of the United States of America,

________________

On Petition for Review of a Final Order of the Immigration Court (Agency No. A208-449-401) Immigration Judge: Pallavi S. Shirole

________________

Argued on March 10, 2021

Before: SMITH, Chief Judge, McKEE and AMBRO, Circuit Judges

(Opinion filed: July 15, 2021)

Charles W. Stotter, Esquire Carlton Fields, P.A. 180 Park Avenue, Suite 106 Florham Park, New Jersey 07932

Robert D. Helfand, Esquire (Argued) Office of the Connecticut State Comptroller Retirement Services Division 165 Capitol Avenue Hartford, CT 06103 Counsel for Petitioner

Jeffrey Bossert Clark, Esquire Anthony C. Payne, Esquire Lance J. Lolley, Esquire (Argued) Office of Immigration Litigation Civil Division U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 Counsel for Respondent

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OPINION OF THE COURT ________________

McKEE, Circuit Judge

Jorge Luis Valarezo-Tirado petitions this Court for review of an Immigration

Judge’s reinstatement of his prior order of removal. The IJ affirmed a Department of

Homeland Security (DHS) asylum officer’s determination that Valarezo-Tirado did not

have a reasonable fear of torture as required for relief under the Convention Against

Torture (CAT) or a reasonable fear of persecution as required for asylum and withholding

of removal. Valarezo-Tirado appeals the IJ’s denial of his CAT claim. For the reasons

that follow, we will grant the petition for review and vacate the IJ’s decision and order

and remand for further proceedings.

I.

A. Factual Background and Procedural History

2 Jorge Luis Valarezo-Tirado, an Ecuadorian citizen, entered the United States

illegally in 2017. He was subsequently detained by DHS, and in January 2020, DHS

reinstated a prior order of his removal. 1 However, before he was actually removed, DHS

conducted a reasonable fear interview in front of an asylum officer because Valarezo-

Tirado claimed a fear of persecution if he were returned to Ecuador. That interview began

on February 20, 2020. At the start of the interview, Valarezo-Tirado was twice informed

of his right to postpone the interview for up to 48 hours to procure an attorney. He was

also provided with a list of pro bono and low-cost attorneys who may be willing to

represent him. However, both times he was asked, he declined, and decided to proceed

with the interview that day without an attorney.

Valarezo-Tirado told the asylum officer that in 2016 he had a dispute with a

neighbor, Enrique Villa, in his hometown of Pedro Vicente Maldonado, Ecuador.

Valarezo-Tirado sold Villa a load of lumber. When Valarezo-Tirado went to collect

payment, Villa refused to pay. Valarezo-Tirado then went to the local police to file a

report about Villa’s refusal, but the police allegedly told Valarezo-Tirado not to file a

police report. According to Valarezo-Tirado, “they told me not to do anything, that he

will pay me; that I should leave it alon[e] [and] that he will pay me.” 2 Officers also told

1 DHS had previously detained Valarezo-Tirado and issued a Form I-860 Determination of Inadmissibility and Order of Removal on September 6, 2015. DHS removed Valarezo- Tirado to Ecuador on October 23, 2015. The events giving rise to this appeal occurred after Valarezo-Tirado’s removal in 2015.

. 3 Valarezo-Tirado that Villa was “involved in some dark business.” 3 Villa was allegedly

known in the community to have ties to drug trafficking.

Valarezo-Tirado told the asylum officer that based on the inaction of the local

police, he believed Villa “ha[d] some kind of friendship with the police and the police

would have told [Villa] that I came to file a report against him.” 4 Accordingly, Valarezo-

Tirado did not file a police report. However, as Valarezo-Tirado later told the IJ, he

returned to Villa’s house to demand his money a second time. Rather than paying

Valarezo-Tirado, Villa threatened him with a pistol: “he told me to leave things alone or

something will happen to my family or me.” 5

Fearing for his and his family’s safety, Valarezo-Tirado fled to the United States

with his family. Valarezo-Tirado told the asylum officer that since he fled his hometown,

he “heard [Villa] was in jail one time, that he had [a] problem with the police.” 6

Valarezo-Tirado clarified that he believed that the state or provincial police had detained

Villa. He told the asylum interviewer that the state and provincial police were separate

forces than the local police who previously discouraged him from filing a police report.

The DHS asylum officer found that Valarezo-Tirado was “credible,” meaning that

his testimony was “consistent, detailed, and plausible,” 7 but that he did not establish a

reasonable fear of persecution or torture if removed to Ecuador. As to past torture, the

3

4

5 Id. at 24. 6 Id. at 25. 7 Id. at 29. 4 asylum officer concluded “[t]he limited harm experienced by the applicant (verbal threats

of unspecified harm) does not rise to the level of severe physical or mental pain required

to constitute torture.” 8 And “[t]he incident did not cause the applicant any physical harm

and there is no indication that the applicant experienced any prolonged mental suffering

from the experience.” 9

As to the threat of future torture, the asylum officer found that Valarezo-Tirado

“failed to provide specific and persuasive facts that a public official such as a corrupt

police officer would specifically intend to inflict on him severe harm.” 10 The officer also

concluded that Valarezo-Tirado “failed to provide specific and persuasive evidence to

establish a reasonable possibility that a public official would consent or acquiesce to his

future harm by Mr. Villa.” 11

Valarezo-Tirado appealed the DHS asylum officer’s negative credible fear

determination to an IJ. At the beginning of the hearing before the IJ, the IJ had the

following exchange with Valarezo-Tirado about his right to counsel:

IJ: You do have the right to be represented in this hearing by an attorney but at no expense to the Government. You previously received a packet that listed your rights in these proceeding[s]. You also received a list of attorneys and organizations that might be willing to represent you at little or no cost. Do you remember getting that list? Valarezo-Tirado: Yes. IJ: Okay. You don’t have an attorney here with you today but because these are expedited proceedings, I can’t give you any more time to find an attorney.

8 Id. at 31. 9 Id. 10 Id. 11 Id. 5 All right. Sir, have you understood everything that I’ve explained to you today? Valarezo-Tirado: Yes. 12

The IJ then summarized Valarezo-Tirado’s prior testimony from the credible fear

interview and allowed him to expand on why he felt he could not report Villa to the

police. Valarezo-Tirado stated that he was afraid that Villa had friends in the police

department, and therefore did not file a police report. The IJ concluded that she

understood that Valarezo-Tirado was afraid to return, “but the problem is that in order . . .

for you to be able to seek relief in this country you have to fear persecution on account of

a protected ground.” 13 She found “[t]he situation that you are facing seems to be more of

a personal matter. Because of that, sir, I do not find that you’ve established a reasonable

possibility that you would be persecuted on account of one of these protected grounds.” 14

The IJ also stated that she “concur[red] in [DHS’] reasonable fear determination.” 15 Her

written opinion stated, in its entirety: “R not targeted on account of protected ground.

Government is willing to assist.” 16

Valarezo-Tirado now petitions for review. 17

12 Id. at 6–7. 13 Id. at 11. 14 Id. 15 Id. 16 Id. at 1. 17 Because Valarezo-Tirado was subject to a reinstated order of removal, DHS had exclusive jurisdiction to consider Valarezo-Tirado’s reasonable fear claim under

(a) in the first instance. The IJ had jurisdiction to review DHS’ negative reasonable fear determination under

(a), (g). Where an “IJ concurs with the asylum officer’s decision that the applicant did not establish a reasonable fear of persecution or torture, . . . ‘[n]o appeal shall lie from the [IJ]’s decision.’” Bonilla v. 6 II.

Valarezo-Tirado raises the following three arguments on appeal: (i) the IJ’s

conclusion that he did not have a reasonable fear of torture was not supported by

reasonable, substantial, and probative evidence on the record as a whole; (ii) the IJ

violated his due process rights by failing to “develop his testimony” as to his fear of

torture if returned; and (iii) the IJ violated his right to counsel.

A.

In order to obtain relief under the CAT, Valarezo-Tirado must show “that it is

more likely than not that he would be tortured upon return to his country” 18 and that the

torture would occur “by, or at the instigation of, or with the consent or acquiescence of, a

public official . . . or other person acting in an official capacity.” 19 “Acquiescence of a

public official requires that the public official, prior to the activity constituting torture,

have awareness of such activity and thereafter breach his or her legal responsibility to

intervene to prevent such activity.” 20 It is the IJ’s responsibility in the first instance to

decide if Valarezo-Tirado has demonstrated eligibility for CAT relief. 21 We review an

IJ’s findings of fact under an “‘extraordinarily deferential standard’ [and] we uphold the

Sessions,

, 90 n.4 (3d Cir. 2018) (quoting

(g)(1)). An IJ’s decision concurring with an asylum officer’s negative credible fear determination is, therefore, a final order of removal.

We have jurisdiction to review final orders of removal under

. See also

18 Saravia v. Att’y Gen.,

(3d Cir. 2018) (internal citation omitted). 19

(a)(1). 20

§ 1208.18(a)(7). 21

(b)(3)(C) (The trier of fact, the IJ, “shall determine whether the [noncitizen] has sustained the [noncitizen’s] burden of proof.”). 7 IJ’s findings if they are ‘supported by reasonable, substantial, and probative evidence on

the record considered as a whole.’” 22

Given the IJ’s less-than-terse explanation of her denial of CAT relief, it becomes

necessary to again stress that “the availability of judicial review . . . necessarily

contemplates something for us to review.” 23 This means that an IJ (or the BIA) must

explain a decision “with such clarity as to be understandable.” 24 And “[a]lthough we ask,

in evaluating whether an agency determination is supported by substantial evidence,

‘whether a reasonable fact finder could make such a determination based upon the

administrative record,’ we will not supply the basis for its decision where appropriate

reasons are not set forth by the [IJ] itself.” 25 Given the bullet point-like checklist that

purported to explain the IJ’s decision here, we stress that, “[w]here the administrative

decision fails to consider or mention evidence that is on its face relevant and persuasive,

the proper course is to remand for further consideration by the IJ.” 26

Valarezo-Tirado alleges that the IJ’s conclusion that he does not have a reasonable

fear of torture if returned to Ecuador is not supported by substantial evidence. We agree.

The entirety of the IJ’s written decision rejecting his claim states: “R not targeted on

account of protected ground. Government is willing to assist.” 27 With nothing more than

22 Romero v. Att’y Gen.,

(3d Cir. 2020) (quoting Garcia v. Att’y Gen.,

(3d Cir. 2011)). 23 Abdulai v. Ashcroft,

(3d Cir. 2001). 24 Wang v. Att’y Gen.,

(3d Cir. 2005) (quoting SEC v. Chenery Corp.,

(1947)). 25

at 271 (citing Chenery Corp.,

) (emphasis added). 26 Chukwu v. Att’y Gen.,

(3d Cir. 2007).

. 8 that bare conclusion—“[g]overnment is willing to assist”—we have no way of

determining what evidence, if any, the IJ relied upon. “An IJ must support her factual

determinations with ‘specific, cogent’ reasons such that her conclusions ‘flow in a

reasoned way from the evidence of record.’” 28 Failure to provide such support “does not

pass muster under the substantial evidence rubric.” 29

Valarezo-Tirado argues not only that there is no evidence in the record to support

the IJ’s conclusion; he claims that the record evidence supports the opposite conclusion.

He believes this record supports the conclusion that the police were unwilling or unable

to assist. He points to his testimony before the asylum officer and before the IJ. He

testified that the police told him not to file an official police report because Villa was into

“some dark business.” 30 He told the IJ: “when I went to report [Villa], they, the police

[told] me, don’t, don’t do it.” 31 The government, on the other hand, points to Valarezo-

Tirado’s testimony before the asylum officer in which he stated that, at one point after

Valarezo-Tirado fled his hometown, he heard that the provincial police had detained

Villa.

Therein lies the problem. The IJ’s failure to provide a citation or reference to

anything in the record leaves us guessing at the evidence she relied upon and gives us

“[nothing] to review.” 32 “[W]e cannot give meaningful review to a decision in which [an

28 Toure v. Att’y Gen.,

(3d Cir. 2006) (citing Dia v. Ashcroft,

(3d Cir. 2003)). 29

(citing Dia,

).

. 31

32 Abdulai,

. 9 IJ] does not explain how it came to its conclusion.” 33 Valarezo-Tirado is correct when he

argues that although the government “suggests ways in which [Valarezo-Tirado’s]

testimony might have supported [the IJ’s] conclusion,” 34 the government can only guess

whether the IJ even considered the evidence of Villa’s alleged arrest by provincial police.

We fare no better. It “would be improper for us to speculate as to whether” the IJ

considered such evidence, or how it factored into her conclusion. 35 The basis for the IJ’s

decision “can and should be addressed explicitly by the [IJ] upon remand.” 36

We have previously granted a petition for review in which the alleged basis for the

BIA’s denial of relief was that “the evidence is insufficient” and “the arguments made by

the [government] on appeal . . . are persua[sive]” because we could not “perform

meaningful review of [such an] order.” 37 Here, we have even less to work with.

We realize, of course, that the IJ and BIA have a tremendous caseload and very

crowded dockets. We have taken pains to note that the large number of cases on IJs’ and

the BIA’s dockets “impose[] practical limitations on the length of the [IJ’s and] BIA’s

written opinions.” 38 However, we will not permit crowded dockets or a backlog of cases

to excuse an IJ or the BIA from providing a meaningful explanation of why someone has

been denied relief under the asylum laws or the CAT. The most fundamental notion of

due process must include an opportunity for meaningful judicial review. We reiterate that

33 Awolesi v. Ashcroft,

(3d Cir. 2003). 34 Pet’r’s Reply Br. at 15–16. 35 Voci v. Gonzales,

(3d Cir. 2005). 36

37 Awolesi,

. 38 Voci,

n.3. 10 “judicial review necessarily requires something to review and, if the agency provides

only its result without an explanation of the underlying fact finding and analysis, a court

is unable to provide judicial review.” 39 The required review is simply not possible when

we are provided with nothing more than the kind of one-line checklist that is relied upon

here. We cannot allow an IJ or the BIA to dispense with an adequate explanation of a

final decision merely to facilitate or accommodate administrative expediency.

Since “the [IJ]’s failure of explanation makes it impossible for us to review its

rationale, we [will] grant [Valarezo-Tirado’s] petition for review, vacate the [IJ’s] order,

and remand the matter to [the IJ] for further proceedings consistent with this opinion.” 40

B.

Valarezo-Tirado also argues that the IJ had a duty to develop his testimony about

government acquiescence to torture because that troubled the IJ and was dispositive in

her denial of his claim. He supports this argument by citing to our line of cases requiring

IJs to provide notice to a noncitizen before denying his or her claim for a lack of

corroboration. In Toure, for example, we stated that the IJ “has a duty to develop [the

noncitizen’s] testimony, especially regarding an issue that she may find dispositive, and .

. . must adequately explain the reasons for [her] decisions.” 41 The IJ must also “give the

[noncitizen] notice of what corroboration will be expected and an opportunity to present

39 Dia,

(Stapleton, J., dissenting) (citing Chenery Corp., 332 U.S. at 196– 97). 40 Abdulai,

. 41

(internal citation omitted). 11 an explanation if the [noncitizen] cannot produce such corroboration.” 42 This “rule

derives principally from the fact that we cannot have meaningful judicial review without

giving the applicant notice and an opportunity to corroborate.” 43

As we have already discussed, however, the IJ did not adequately explain the

reasons for her decision. Consequently, we cannot determine if the IJ erroneously relied

on a lack of corroborating evidence. On remand, therefore, to the extent that the IJ

concludes Valarezo-Tirado must come forth with corroborating evidence, she must

reopen the proceedings, inform Valarezo-Tirado of the evidence that requires

corroboration, and must give Valarezo-Tirado an opportunity to furnish such information

or provide an explanation for its absence. 44

C.

Finally, Valarezo-Tirado argues that he was denied his right to counsel and

therefore requires a new hearing at which counsel will be present. We cannot agree with

that claim.

“[A]lthough the Fifth Amendment does not mandate government-appointed

counsel for [noncitizens] at removal proceedings, it indisputably affords [a noncitizen]

the right to counsel of his or her own choice at his or her own expense.” 45 In removal

proceedings, the right to counsel imposes certain obligations on the IJ. She must

42 Chukwu,

. 43 Saravia,

. 44 See

(An IJ must provide the petitioner with “notice [of the facts requiring corroboration and] an opportunity to provide corroborating evidence or explain its unavailability.”). 45 Leslie v. Att’y Gen.,

(3d Cir. 2010). 12 “[a]dvise the [noncitizen] of his or her right to representation, at no expense to the

government, by counsel of his or her own choice . . . and require the [noncitizen] to state

then and there whether he or she desires representation.” 46 She must also “[a]dvise the

[noncitizen] of the availability of pro bono legal services for the immigration court

location at which the hearing will take place, and ascertain that the [noncitizen] has

received a list of such pro bono legal services providers.” 47 If an IJ fails to do so, the

noncitizen is entitled to a new hearing without a showing of prejudice. 48

Valarezo-Tirado argues that because there is a right to counsel in removal

proceedings, that same right should be recognized in reviews of credible fear

determinations. We have recognized, however, that the credible fear interview process

differs from removal proceedings and, concomitantly, so do the protections offered to

noncitizens in either process.

In Bonilla, we recognized this difference and denied a claim similar to the one

Valarezo-Tirado now brings. That case is instructive. There, petitioner Sorto Bonilla was

similarly subject to a reinstated removal order but expressed a fear of returning to his

home country. 49 He appeared before the asylum officer with counsel but was

unsuccessful. He appealed the asylum officer’s negative decision to an IJ. 50 However,

Sorto Bonilla appeared before the IJ without counsel. 51 The IJ agreed with the asylum

46 Bonilla, 891 F.3d at 91–92 (quoting

(a)(1)–(2)). 47

at 92 (quoting

(a)(1)–(2)). 48 See Leslie,

. 49

. 50

51

. 13 officer’s negative credible fear determination and ordered Sorto Bonilla removed. Sorto

Bonilla then petitioned for review in this Court arguing that he was denied his right to

counsel. 52

We recognized that the regulations governing reviews of credible fear

determinations “state that [a noncitizen] ‘may be represented by counsel’ at the screening

process’ first step—the interview with the asylum officer”—but found that “the

regulations are silent as to whether [a noncitizen] may have counsel present at the second

step of the screening process before the IJ.” 53 We concluded that Sorto Bonilla had “not

shown that the regulations explicitly invested him with a right to counsel at the IJ’s

review hearing, and we need not reach the question [] whether he otherwise has such a

right . . . because Sorto Bonilla ‘was not denied the opportunity to obtain the counsel of

his choice.’” 54 The same result obtains here.

Valarezo-Tirado cannot show that he was denied the opportunity to obtain

counsel. Valarezo-Tirado was specifically asked if he wished to stop the proceedings to

obtain counsel at his credible fear interview. In fact, as quoted above, the hearing officer

gave him that opportunity twice and also offered a list of pro bono and low-cost lawyers

whom he could consult if he wished to briefly postpone the hearing. He declined and

stated that he wanted to proceed with the interview that day.

52

53

(quoting

(c), (g)). 54

(quoting Ponce-Leiva v. Ashcroft,

(3d Cir. 2003)). 14 His claim regarding the hearing before the IJ fares no better. Valarezo-Tirado

“was notified that the IJ may allow him to be represented at the proceeding and instructed

that his counsel should be present if he wished to be represented,” 55 but Valarezo-Tirado

appeared at the hearing without counsel. At the beginning of the hearing, the IJ asked

Valarezo-Tirado if he had received information at his credible fear interview about his

ability to have a lawyer for the hearing before the IJ. He affirmed that he had. Also, as in

Bonilla, “the IJ noted that [Valarezo-Tirado] did not have counsel present, further

reflecting that the IJ was cognizant of the value of legal counsel and did not deprive him

of it.” 56 Valarezo-Tirado neither objected nor asked for a lawyer during the hearing

before the IJ. Accordingly, he has not shown that he was denied counsel before the IJ.

III.

We realize, and “readily acknowledge that an IJ’s position is an impossibly

demanding and challenging one.” 57 We have already commented on this above.

Moreover, we recognized in 2011 that “IJs [were] confronted with an exponential growth

in their caseloads,” noting that the average immigration judge handled over 1500 cases in

a year. 58 And the volume continues to increase.

A 2019 study found that “on average each [immigration] judge currently has an

active pending caseload of over two thousand cases.” 59 Nevertheless, we cannot allow

55 Bonilla,

. 56 Bonilla,

. 57 Abulashvili v. Att’y Gen.,

(3d Cir. 2011). 58

at 208 & n.10. 59 Crushing Immigration Judge Caseloads and Lengthening Hearing Wait Times, TRAC Immigration (Oct. 25, 2019), https://trac.syr.edu/immigration/reports/579/. 15 incredibly difficult logistics to give license to IJs to skirt their responsibilities. This

includes the obligation to inform the petitioner of the reasons for the IJ’s decision and

provide an adequate explanation of the decision that does not require us to parse through

the testimony in search of evidence that supports it. A two-sentence recitation on a bullet-

point form will rarely, if ever, provide sufficient reasoning for a decision. A decision,

such as the one here, that does not refer to record evidence will never suffice. Because,

here, the IJ’s decision was not supported by substantial evidence, we will vacate the

decision and order and remand to the IJ for proceedings consistent with this opinion.

16