PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-1201

ADAN DE JESUS TOMAS-RAMOS,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of an Immigration Judge.

Argued: September 22, 2021 Decided: February 2, 2022

Before GREGORY, Chief Judge, and HARRIS and RUSHING, Circuit Judges.

Petition for review granted; vacated and remanded by published opinion. Judge Harris wrote the opinion, in which Chief Judge Gregory and Judge Rushing joined.

ARGUED: Michael D. Lieberman, KIRKLAND & ELLIS LLP, Washington, D.C., for Petitioner. Patricia E. Bruckner, UNITED STATES DEPARMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Simon Y. Sandoval-Moshenberg, Stacy M. Kim, LEGAL AID JUSTICE CENTER, Falls Church, Virginia; Paul F. Brinkman, Michael A. Francus, KIRKLAND & ELLIS LLP, Washington, D.C., for Petitioner. Ethan P. Davis, Acting Assistant Attorney General, Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. PAMELA HARRIS, Circuit Judge:

After Adan de Jesus Tomas-Ramos, a citizen and native of Guatemala, reentered

the United States illegally in 2018, a removal order previously entered against him was

reinstated. But because Tomas-Ramos expressed a fear of returning to Guatemala, an

asylum officer conducted a screening interview to determine whether he reasonably feared

persecution or torture in his home country. The asylum officer determined that Tomas-

Ramos failed to establish a reasonable fear of such harm, and so was not entitled to relief

from his reinstated removal order. An Immigration Judge (“IJ”) concurred with that

determination.

Tomas-Ramos now petitions for review of the IJ’s order on two grounds. He first

contends that the IJ’s finding that he lacked a reasonable fear of persecution or torture was

erroneous. We agree. The primary ground for the IJ’s decision was that there was no

“nexus” between the harm Tomas-Ramos faced and a protected ground. But the agency

incorrectly applied the statutory nexus requirement. Instead, the record compels the

conclusion that Tomas-Ramos was persecuted on account of a protected ground, in the

form of his family ties. And in light of that error, we cannot determine that the other reason

given by the IJ for her decision – that Tomas-Ramos could avoid harm by relocating – was

supported by substantial evidence. Accordingly, we grant the petition for review, vacate

the agency’s decision, and remand for further proceedings.

In addition, Tomas-Ramos argues that noncitizens subject to reinstated removal

orders have a right to counsel at reasonable fear review hearings, and that although he was

represented by counsel before the IJ, his rights were violated when his lawyer was denied

2 a chance to make a closing statement. Given our disposition of the underlying claims, we

think it premature to resolve that issue. At a new hearing on remand, the IJ may well permit

counsel to participate to the extent Tomas-Ramos contends is required, making it

unnecessary for us to rule on the question.

I.

Because Tomas-Ramos reentered the United States without authorization after a

prior removal, his case is subject to the distinct statutory and regulatory regime governing

reinstated removal orders. We begin by describing that background law, and then turn to

the facts of this case.

A.

Congress has established a streamlined process for removal of noncitizens who

return illegally to this country after a previous removal order has been entered against them.

In such cases, the prior adjudication of removal remains final and conclusive: The “prior

order of removal is reinstated from its original date,” and is “not subject to being reopened

or reviewed.”

(a)(5). Nor may the noncitizen pursue discretionary relief,

like asylum. Fernandez-Vargas v. Gonzales,

, 34–35 & n.4 (2006).

Implementing regulations track the statute, providing that a noncitizen who unlawfully

reenters after being ordered removed “shall be removed from the United States by

reinstating the prior order,” without any right to a hearing before an IJ.

(a).

So in the ordinary case, a noncitizen facing a reinstated removal order is removed from the

country without further legal proceedings.

3 But there is an exception to that rule. Congress also has provided that a noncitizen

may not be removed to a country where he would be persecuted – that is, his “life or

freedom . . . threatened” based on a protected ground.

(b)(3)(A). Nor,

consistent with our country’s obligations under the Convention Against Torture (“CAT”),

may a noncitizen be removed to a country where he would be subject to torture. See

§ 1231 note (United States Policy With Respect to Involuntary Return of Persons in Danger

of Subjection to Torture); see also

(c) (implementing regulations). Thus,

although a noncitizen may not otherwise challenge a reinstated removal order, he still may

pursue two forms of relief to prevent removal to a particular country: withholding of

removal under § 1231(b)(3)(A) and protection under the CAT. See Johnson v. Guzman

Chavez,

(2021);

(e). And if he can establish a “clear

probability” that he would be persecuted or that he would “more likely than not” be

tortured, then relief is mandatory and the government must withhold removal to the country

in question. See Salgado-Sosa v. Sessions,

(4th Cir. 2018).

The relevant agencies have established a screening mechanism intended to satisfy

these statutory directives “without unduly disrupting the streamlined removal process.”

Regulations Concerning the Convention Against Torture,

, 8479 (Feb.

19, 1999). 1 When a noncitizen subject to a reinstated removal order expresses fear of

1 Two identical sets of regulations govern the reasonable fear determination process,

and 1208.31, promulgated by the Department of Homeland Security and the Executive Office for Immigration Review, respectively. For simplicity, we refer to § 208.31 alone throughout this opinion.

4 returning to a country of removal, he will first be interviewed by an asylum officer to

determine whether he has a “reasonable fear” of persecution or torture.

(a)–(b). At that non-adversarial screening interview, generally held within ten

days of referral, the noncitizen may present evidence, and has a right to counsel (at no

expense to the government) who may present a closing statement.

§ 208.31(c). The

noncitizen “shall be determined to have a reasonable fear” if he establishes “a reasonable

possibility” that he would be persecuted on account of a protected ground, or a “reasonable

possibility” that he would be tortured in the country of removal. Id. If the asylum officer

concludes that the noncitizen has demonstrated reasonable fear, the case is referred to an

IJ for full consideration of whether the noncitizen is entitled to withholding or CAT

protection. Id. § 208.31(e).

If the asylum officer determines that the noncitizen has not established reasonable

fear – as was the case for Tomas-Ramos – the noncitizen is entitled to review by an IJ. Id.

§ 208.31(g). Unlike the provisions governing initial reasonable fear interviews, the

regulations do not describe how IJs shall conduct these review proceedings; in particular,

they do not address a right to counsel or to present evidence. Instead, they provide simply

that the asylum officer’s “record of determination” will be forwarded to the IJ and that the

IJ will conduct a review, barring exceptional circumstances, within ten days of referral. Id.

If the IJ concurs with the asylum officer’s negative reasonable fear determination, as

occurred here, the case is set for removal; if the IJ instead finds a reasonable fear, the

noncitizen proceeds to full consideration of claims for withholding or CAT protection. See

id. § 208.31(g)(1)–(2).

5 Agency manuals provide additional details regarding the reasonable fear

determination process, and neither party challenges the validity of those manuals. First,

the practice manual for parties in immigration court clarifies that a “reasonable fear review

hearing” before an IJ “is not as comprehensive or in-depth as a withholding of removal

hearing,” but is instead “a review of the [] asylum officer’s decision.” Immigration Court

Practice Manual § 7.4(e)(iv)(E) (Nov. 16, 2020). Accordingly, parties may present

evidence only at the discretion of the IJ, id., and – especially relevant here – whether the

noncitizen may be represented by counsel also is a matter of IJ discretion, id.

§ 7.4(e)(iv)(C).

Second, the training manual for asylum officers clarifies what showing is required

to establish a “reasonable possibility” of persecution or torture – the benchmark for

“reasonable fear” set by

(c). See U.S. Citizenship & Immigr. Servs.,

Asylum Division Officer Training Course: Reasonable Fear of Persecution and Torture

Determinations 10–11, 17 (Feb. 13, 2017) (“Training Manual”). The “reasonable

possibility” standard is the “same standard asylum officers use in evaluating whether an

applicant is eligible for asylum.”

; see also

(governing asylum

eligibility); 64 Fed. Reg. at 8485 (describing standard). 2 In this context, however,

2 This “reasonable possibility” standard is lower than the “clear probability” standard required to establish eligibility for withholding of removal, but higher than the standard required to establish a “credible fear” of persecution in expedited removal proceedings under

. See

(b)(4) (governing expedited removal proceedings and “credible fear” interviews);

§ 208.30(e)(1) (credible fear requires a “significant possibility” that the noncitizen can establish eligibility for asylum); see also Training Manual at 11 (comparing standards); 64 Fed. Reg. at 8485 (same).

6 “reasonable possibility” is used not to assess a noncitizen’s ultimate eligibility for asylum,

but rather as a screening mechanism to determine whether a noncitizen may be able to

establish an entitlement to withholding or CAT protection. See Training Manual at 17; 64

Fed. Reg. at 8485 (explaining standard).

Importantly for this case, to establish a “reasonable possibility” of persecution in a

reasonable fear proceeding, the evidence must show that a noncitizen cannot avoid the

feared harm by relocating within the country of removal, or that expecting him to relocate

would be unreasonable. Training Manual at 19. That is a familiar inquiry; the same

showing is required for asylum eligibility, see

(b)(2)(ii), and for

withholding eligibility in full withholding proceedings, see

§ 208.16(b)(2). But just as

in those contexts, if a noncitizen in reasonable fear proceedings establishes past

persecution, a reasonable fear of future persecution is presumed. Training Manual at 18;

see

(b)(1) (asylum);

§ 208.16(b)(1)(i) (withholding). That

presumption may be overcome only if the government establishes, by a “preponderance of

the evidence,” that a noncitizen can avoid persecution by relocating and that it would be

reasonable to do so, or that there has been some fundamental change in circumstances.

Training Manual at 18–19; see

(b)(1)(i)–(ii) (asylum);

§ 208.16(b)(1)(i)–(ii) (withholding).

As for torture, the reasonable fear determination again tracks the standard for relief

under the CAT. In assessing whether there is a “reasonable possibility” of torture, asylum

officers in reasonable fear proceedings should consider all relevant evidence, including

“whether or not the applicant could safely relocate to another part of his or her country[.]”

7 Training Manual at 40; see

(c)(3) (directing, for relief under the CAT,

consideration of “all evidence relevant to the possibility of future torture,” including

“[e]vidence that the applicant could relocate to a part of the country of removal where he

or she is not likely to be tortured”).

B.

Tomas-Ramos first entered the United States without authorization in October 2017.

He was soon apprehended and ordered removed, and was removed to Guatemala in

November 2017. See

(b)(1) (authorizing expedited removal of noncitizens

apprehended near the border soon after entry). In August 2018, Tomas-Ramos reentered

the United States illegally, this time accompanied by his teenage son. The Department of

Homeland Security (“DHS”) reinstated his prior removal order, but released him from

detention, allowing him to live in Virginia (with an ankle monitor) for over a year.

In September 2019, DHS took Tomas-Ramos back into custody and sought to

remove him under the reinstated removal order. Three days later, through counsel, Tomas-

Ramos requested a reasonable fear interview, stating that he feared returning to Guatemala

because gang members had threatened to kill him for resisting their recruitment of his son.

Although a DHS officer agreed to arrange the interview, he failed to do so, and Tomas-

Ramos was mistakenly deported to Guatemala. After Tomas-Ramos sued, DHS returned

him to the United States for the reasonable fear proceedings at issue in this case.

During his reasonable fear interview with an asylum officer, Tomas-Ramos testified

that in Guatemala, gang members had attempted to recruit his son, which Tomas-Ramos

refused to allow. He stated that he was afraid to return because, in 2018, the gang members

8 had repeatedly called him on the phone, threatening to kill him and his family if he did not

let his son join the gang. Those threats were credible, Tomas-Ramos believed, in part

because gang members once threatened to kill him just days after they had murdered

another person who attended his church. Relatedly, Tomas-Ramos testified that if he

returned to Guatemala, he would not be able to attend church; if he did, gang members

would recognize him as a churchgoer and target him. Tomas-Ramos’s fears were

confirmed, he said, when he was erroneously deported to Guatemala in 2019: He rarely

left the house, but when he did, gang members spotted him and yelled his name, causing

him to run away and hide. Based on that testimony, counsel for Tomas-Ramos argued in

her closing statement that he had been persecuted based on membership in the particular

social group of his family, and possibly his Christian religion, and likely would be harmed

if returned to Guatemala.

The asylum officer found Tomas-Ramos credible but determined that he had not

established a reasonable fear of persecution or torture. As to persecution, the asylum

officer found that Tomas-Ramos failed to show a reasonable possibility that the harm he

experienced or feared was on account of a protected characteristic (race, religion,

nationality, political opinion, or membership in a particular social group). See

(c) (identifying protected grounds supporting reasonable fear of persecution);

(b)(3)(A) (same for withholding of removal). The asylum officer recognized

that the threats he received “could indicate [Tomas-Ramos] was harmed on account of a

particular social group ‘[i]mmediate family members of . . . the applicant’s son.’” A.R. 67.

But she found that “[i]mmediate family” of Tomas-Ramos’s son did not qualify as a

9 cognizable and protected “particular social group” because it “lacks social distinction.”

And while religion is a protected ground, the asylum officer continued, there was no

evidence that gangs targeted Tomas-Ramos on account of his Christian beliefs. As to

torture, the asylum officer found that Tomas-Ramos failed to establish a reasonable

possibility that the violence he feared would be perpetrated by or with the consent or

acquiescence of a public official, as required for relief under the CAT. See

(a)(1) (defining torture as the intentional infliction or severe threat of pain or

suffering by, or with the consent or acquiescence of, a public official).

Tomas-Ramos requested that an IJ review the asylum officer’s negative

determination. At his review hearing before the IJ in February 2020, Tomas-Ramos was

represented by counsel, who filed a memorandum and several exhibits on his behalf.

Although the IJ apparently did not receive this submission before the hearing, she took a

recess and reviewed it then. After resuming the hearing, the IJ questioned Tomas-Ramos

extensively, and then told him that she found no reasonable fear of persecution or torture.

At that point, counsel for Tomas-Ramos asked to be heard. The IJ denied this

request, explaining that the relevant agency regulations and practice manual made clear

that argument was not required, and went on to explain her decision. The IJ expressed

doubt that simply because Tomas-Ramos refused to let his son be recruited by the gang in

the past, gang members would harm Tomas-Ramos if he returned to Guatemala now. The

IJ also was skeptical of Tomas-Ramos’s claim that he could not avoid harm by relocating

within Guatemala because gang members would recognize him as a churchgoer wherever

he moved.

10 Following the hearing, the IJ issued a one-page form order concurring with the

asylum officer’s negative reasonable fear determination. She checked a box indicating that

Tomas-Ramos had not established a reasonable fear of persecution or torture. And she

provided three reasons for her decision, which read in full: “No nexus to any protected

ground. Respondent can relocate. Respondent also had difficulty articulating his fear.”

A.R. 1.

Tomas-Ramos timely petitioned this court for review of the IJ’s ruling. 3

II.

We begin with Tomas-Ramos’s challenge to the IJ’s determination that he failed to

establish a reasonable fear of persecution or torture in Guatemala. We review factual

findings underlying that determination for substantial evidence, “treating them as

conclusive unless any reasonable adjudicator would be compelled to conclude to the

contrary,” and we review legal conclusions de novo. Perez Vasquez v. Garland,

(4th Cir. 2021) (internal quotation marks omitted).

3 Because the streamlined process that governs reasonable fear determinations does not include an appeal to the Board of Immigration Appeals, the IJ’s ruling on review pursuant to § 208.31(g)(1) is the agency’s “final order” for purposes of judicial review under

(a)(1). See Hernandez-Aquino v. Barr,

, 88–89 (4th Cir. 2019) (per curiam) (reviewing IJ order concurring in negative reasonable fear determination).

11 A.

As a threshold matter, we address the government’s argument that instead of our

usual substantial evidence standard, we should apply in this case a still more deferential

standard and uphold the IJ’s decision so long as it was based on a “facially legitimate and

bona fide reason.” See Kleindienst v. Mandel,

(1972). While the

government often has taken this position in cases challenging reasonable fear

determinations, it has yet to find a circuit to agree, and our court has expressed some

skepticism. See Hernandez-Aquino, 770 F. App’x at 88 n.2 (noting absence of cases

applying the government’s proposed standard and assuming without deciding that the

substantial evidence standard applies). We now join two of our sister circuits and reject

this argument. See Romero v. Att’y Gen. U.S.,

(3d Cir. 2020); Andrade-

Garcia v. Lynch,

(9th Cir. 2016). 4

The “facially legitimate and bona fide reason” standard of review sought by the

government was developed “in a limited and distinctive setting: challenges to government

decisions to deny visas.” Romero,

. In that context, the Executive is

exercising “plenary power” and virtually unlimited discretion, delegated by Congress, to

4 Additional circuits have taken the same approach we did in Hernandez-Aquino, reviewing and sustaining negative reasonable fear determinations under the substantial evidence standard without resolving whether the more deferential Mandel standard might apply. See Cadenas-Campuzano v. Garland, No. 21-9524,

, at *5 (10th Cir. Nov. 29, 2021); Zaya v. Garland, No. 20-3815,

, at *2 (6th Cir. Sept. 29, 2021); Remy v. Barr,

, 57 (2d Cir. 2020) (summary order); Lara- Nieto v. Barr,

, 1060 & n.5 (8th Cir. 2019); Vasquez-Ramirez v. U.S. Att’y Gen.,

(11th Cir. 2017); Telles v. Lynch,

(1st Cir. 2016).

12 make rules for the admission of noncitizens. See Mandel, 408 U.S. at 765–66, 769–70.

Given that expansive discretion, Executive decisions about visa eligibility generally are

not reviewable at all. See

; Romero,

. Mandel makes a narrow

exception, allowing for judicial review when a visa denial impinges on the constitutional

rights of a United States citizen, but only on very limited grounds: So long as the Executive

exercises its broad power “on the basis of a facially legitimate and bona fide reason, the

courts will neither look behind the exercise of that discretion, nor test it by balancing its

justification against” the constitutional rights in question. Mandel,

.

Those principles do not translate to this context. Mandel’s core premise is the

Executive’s nearly unfettered discretion over visa determinations.

at 766–67. But here,

the Executive’s discretion is not unfettered. Instead, as described above, we are here

precisely because Congress has imposed two express limits on the Executive’s ability to

remove a noncitizen pursuant to a reinstated removal order: The government may not

remove a noncitizen to a country in which there are substantial grounds for believing he

would be tortured, see

note, or in which he faces a clear probability of

persecution on account of a protected ground, see

§ 1231(b)(3)(A). And if the

noncitizen meets the relevant burden of proof, then both CAT relief and withholding relief

are mandatory – just as they are in the context of a full removal hearing, when we apply

our already very deferential substantial evidence standard of review. See Andrade-Garcia,

. This case, in other words, turns on statutory restrictions on the

Executive’s authority to remove, rendering Mandel inapposite. See id.; Romero,

.

13 Moreover, Mandel’s particular standard of review has no sensible application in a

case like this. Because of the factual context in which Mandel arose – a claim that a visa

was denied not for the reason stated by the relevant executive official but instead because

of disagreement with the applicant’s political views – that case is focused on whether a

court may “look behind” an Executive explanation for denial of admission. Mandel,

;

(dissenting opinion). Hence the Mandel rule: If the Executive acts

on the basis of a “facially legitimate and bona fide reason,” then the courts will not look

behind that reason, second-guessing the Executive’s exercise of discretion or weighing it

against competing First Amendment rights.

. But here, of course, nobody is

suggesting that the IJ’s stated reasons for her decision were not her actual reasons, or that

there are constitutional interests that could be “balanc[ed]” against the IJ’s determination.

Cf.

The Mandel standard simply does not speak in any helpful way to the question in

this case: whether the IJ’s ruling, on the factual record before her, is consistent with the

statutory bar on removing Tomas-Ramos to a country where he will face torture or

persecution. That question – the same one we encounter routinely in regular removal

proceedings – is addressed by, and remains subject to, the substantial evidence standard of

review.

B.

Applying this familiar standard of review, we conclude that the agency erred in

finding that Tomas-Ramos failed to establish the requisite nexus to a protected ground in

support of his claim of persecution. Instead, the record compels a finding that Tomas-

Ramos was persecuted at least in central part because of his family relationship to his son,

14 which qualifies as a protected ground for withholding purposes. Finding no independent

basis on which to affirm the IJ’s decision, we vacate the agency’s determination and

remand for further proceedings.

1.

To establish a reasonable fear of persecution, Tomas-Ramos must show “a

reasonable possibility that he [] would be persecuted on account of his [] race, religion,

nationality, membership in a particular social group or political opinion” if returned to

Guatemala.

(c). He credibly testified to having received death threats

from a gang attempting to recruit his son, and we have expressly held that “the threat of

death qualifies as persecution.” Crespin-Valladares v. Holder,

(4th Cir.

2011) (internal quotation marks omitted); see also Bedoya v. Barr,

(4th

Cir. 2020) (collecting cases holding that death threats amount to persecution). Neither the

asylum officer nor the IJ suggested otherwise.

Instead, both found that Tomas-Ramos failed to establish a reasonable possibility

that the persecution he suffered was “on account of” – that is, had a “nexus” to – a

statutorily protected ground. Those grounds include, as noted above, membership in a

“particular social group.” See

(b)(3)(A);

(c). The asylum

officer recognized that Tomas-Ramos might have been threatened because of his

relationship to his son – that is, on account of his membership in his son’s immediate family

– but held that immediate family is not a qualifying “particular social group” because it

“lacks social distinction.” A.R. 67. On that ground alone, the asylum officer held that the

15 gang’s threats against Tomas-Ramos did not give rise to a reasonable fear of persecution

based on a protected ground.

That reasoning was in error. As we have explained, “the family provides a

prototypical example of a particular social group,” Crespin-Valladares,

(internal quotation marks omitted), and familial ties – like Tomas-Ramos’s ties to his son

– qualify as a protected ground for purposes of a persecution claim. See

(collecting

cases from other circuits); see also, e.g., Salgado-Sosa,

(“It is clear” that

“family qualifies as a ‘particular social group,’ protected for purposes of [] asylum and

withholding of removal claims.”). The government concedes this point, and we need not

belabor it here.

The government argues, however, that this error does not matter, because the IJ

correctly held that there was no nexus between Tomas-Ramos’s relationship to his son and

the threats against him. We cannot agree. Tomas-Ramos’s consistent testimony – which

the asylum officer found credible, and the IJ never questioned – was that gang members

threatened to kill him because he resisted their efforts to recruit his son, preventing him

from joining the gang. And we have held that the nexus requirement is satisfied in precisely

that scenario: In Hernandez-Avalos v. Lynch,

, 949–50 (4th Cir. 2015), we

concluded that a mother threatened by gang members because she refused to allow her son

to join the gang had been persecuted “on account of” her membership in her son’s nuclear

family. We recognized that the gang members were motivated as well by a desire to recruit.

But “[a]s we have repeatedly emphasized,” to establish nexus, “it is enough that the

protected ground be at least one central reason for the persecution.” Perez Vasquez, 4

16 F.4th at 224 (internal quotation marks omitted); see Hernandez-Avalos,

(applying “one central reason” standard). Because the evidence established that the gang

threatened “Hernandez, rather than another person, because of her family connection to

her son,” we held, any reasonable adjudicator would be compelled to conclude that she had

been persecuted “on account of” a protected ground. Hernandez-Avalos,

.

This case is governed squarely by Hernandez-Avalos, and we reach the same result.

As in Hernandez-Avalos, there is “no evidence” in this record that Tomas-Ramos “would

have been selected as the recipient of [the gang’s] threats absent [his] familial connection”

to his son.

at 950 n.7. The government recognizes the import of Hernandez-Avalos,

suggesting only that it can be distinguished because the petitioner there gave a more

“compelling and detailed” account of her past harm than Tomas-Ramos. Respondent’s Br.

37. But Tomas-Ramos’s testimony provided, clearly, the detail that counts: that gang

members were threatening him “because I do not allow my son to join the gangs.” Supp.

A.R. 20; see also A.R. 84 (“[T]hey wanted my son to join and as a father I didn’t want my

son to join and so they threatened my whole family.”). That is enough to establish a

reasonable possibility that he was threatened at least in central part because of his parental

relationship to his son, and thus established the requisite nexus to a protected ground. The

agency’s contrary finding, and the government’s argument in support of it, are foreclosed

by our precedent. See Hernandez-Avalos,

. We therefore hold that the

17 record compels a finding that Tomas-Ramos was subject to past persecution on account of

his family ties. 5

2.

In a footnote to its brief, the government argues that even if the IJ erred in finding

“[n]o nexus to any protected ground,” we still may affirm the negative reasonable fear

determination on an alternative basis: the IJ’s additional finding that “[Tomas-Ramos] can

relocate.” A.R. 1. 6 Again, we cannot agree.

As an initial matter, we do agree with the government that a noncitizen’s ability to

avoid persecution by relocating within the country of removal is relevant to the reasonable

fear determination. Tomas-Ramos contends that relocation is inapposite in the reasonable

fear process and may only be considered in full withholding proceedings, but agency

regulations and manuals dictate otherwise.

5 Under our deferential substantial evidence standard, we will not disturb the agency’s finding that Tomas-Ramos failed to establish the requisite nexus to his Christian religion. As the asylum officer reasoned, there is insufficient evidence that his faith was a central reason why gang members threatened him. On Tomas-Ramos’s own account, gang members did not mention his religion in their threats. And although Tomas-Ramos reports that gang members killed a man belonging to his church, they did not inform him why they killed that man, so there is no ground for concluding that it was an act of religious persecution. 6 The government does not argue that the IJ’s third finding – that “[Tomas-Ramos] also had difficulty articulating his fear,” A.R. 1 – provides a basis for affirmance, and we agree. We do not understand that finding to be an independent ground for the IJ’s determination; rather, it appears to have been offered as an explanation for why the IJ was not persuaded that Tomas-Ramos had established nexus to a protected ground.

18 The ultimate question in a reasonable fear proceeding, as we have explained, is

whether a noncitizen subject to a reinstated removal order nevertheless may be eligible for

mandatory relief in the form of withholding of removal or CAT protection. And the ability

to relocate is relevant to both of those eligibility determinations. See

(b)(1)–(3), (c)(3)(iii). To be sure, as Tomas-Ramos emphasizes, the regulation

governing reasonable fear determinations for noncitizens with reinstated removal orders,

§ 208.31, does not specify that the ability to relocate should be considered in assessing

whether there is a “reasonable possibility” of persecution or torture – or, for that matter,

specify any other information that should be considered. But the same “reasonable

possibility” standard is defined in greater detail in the immediately preceding regulation,

id. § 208.30, which governs screening determinations made when a noncitizen barred from

asylum relief on other grounds seeks the same mandatory withholding of removal or CAT

protection at issue here. And in that context, the regulation specifies that in determining

whether there is a “reasonable possibility” of persecution or torture, the asylum officer

should consider whether the noncitizen could avoid such harm by relocating to another part

of the country of removal. See id. § 208.30(e)(2)(ii) (persecution); id. § 208.30(e)(3)(ii)

(torture). We see no reason why a different rule would apply to “reasonable possibility”

assessments under § 208.31 – like Tomas-Ramos’s – and indeed, the manual for asylum

officers conducting such reasonable fear proceedings instructs, consistent with § 208.30,

that “the evidence must establish that the applicant could not avoid future persecution by

relocating” or that expecting him to do so would be unreasonable. Training Manual at 19;

see also A.R. 150 (asylum officer asking questions under the header “Internal Relocation”).

19 Nevertheless, the IJ’s finding that “[Tomas-Ramos] can relocate” is not an

independent ground for affirmance, because that finding is called into question by our

determination that Tomas-Ramos has established past persecution. That finding is critical

to the relocation inquiry: As the agency’s own manuals make clear, a showing of past

persecution gives rise to a presumption of a reasonable fear of future persecution, and that

presumption may be overcome only if it is established, by a preponderance of the evidence,

that “under all the circumstances, it would be reasonable for the applicant to relocate.”

Training Manual at 19; see also A.R. 66–67 (asylum officer reasonable fear determination

checklist). The agency’s guidance on this point tracks the regulation governing

withholding of removal, which provides for the same presumption, rebuttable by the same

preponderance of the evidence finding that the noncitizen may reasonably relocate to avoid

future harm. See

(b)(1)(i)(B). And again tracking the regulation,

§ 208.16(b)(1)(ii), the agency’s guidance puts the burden of proof on rebuttal on the

government, requiring that “DHS establish[] by a preponderance of evidence” the

availability of relocation. Training Manual at 19. 7

7 The government suggests that it is “not entirely clear” that the regulatory rebuttable presumption framework should apply in abbreviated reasonable fear proceedings. Respondent’s Br. 40 n.10. Whether the agency must or should use that framework in the reasonable fear context is not a question before us. The agency’s own guidance indicates that it has made the decision to do so, and as we noted at the outset, no party to this case challenges the validity of that guidance. The government’s primary argument on this point – that there is no presumption because Tomas-Ramos failed to establish past persecution – is incorrect for the reasons we have given.

20 Because the IJ believed – incorrectly – that Tomas-Ramos had not established past

persecution, she never had the opportunity to assess relocation under the proper

framework. 8 In evaluating Tomas-Ramos’s testimony that he could not safely relocate

because gang members would search for him wherever he moved, the IJ could not take into

account what is now presumed: that Tomas-Ramos has a well-founded and reasonable fear

that if he is returned to Guatemala, he again will be subjected to persecution based on his

relationship to his son. In making her relocation finding, the IJ could not have been

expected to, and did not, refer at any point to rebuttal of that presumption, or to the

preponderance of the evidence standard. And unsurprisingly, the IJ never considered

whether “DHS [had] establish[ed] . . . that, under all the circumstances, it would be

reasonable for [Tomas-Ramos] to relocate.” Training Manual at 19.

In these circumstances, we follow our ordinary rule of vacating and remanding so

that the agency may make the relevant factual assessments under the proper standard and

in the first instance. See Alvarez Lagos v. Barr,

(4th Cir. 2019); see also

Portillo Flores v. Garland,

, 636–37 (4th Cir. 2021) (en banc) (holding that

remand is the “appropriate treatment when the grounds upon which the administrative

agency acted are not clearly disclosed and adequately sustained” (internal quotation marks

omitted)).

8 The asylum officer, who made the same past-persecution error as the IJ – though on different grounds – never addressed relocation at all.

21 3.

Given our holding, we also remand Tomas-Ramos’s torture claim to the agency for

further consideration. The IJ did not specify the ground on which she found that Tomas-

Ramos had failed to establish a reasonable fear of torture. Indeed, the IJ never mentioned

torture, in her written order or at the hearing. The asylum officer did address torture,

concluding that Tomas-Ramos failed to show a “reasonable possibility” that government

officials would consent to or acquiesce in any torture. But the IJ made no similar finding,

and as the government concedes, we may affirm only on grounds identified in the IJ’s final

agency determination. See Cordova v. Holder,

(4th Cir. 2014) (citing

SEC v. Chenery Corp.,

(1943)).

That leaves us, again, with the IJ’s finding that “[Tomas-Ramos] can relocate,”

A.R. 1, on which the government relies for affirmance of the negative reasonable fear

determination with respect to torture. As the government argues, and as described at the

outset, the ability to relocate indeed bears on eligibility for CAT relief. See

(c)(3)(ii). But it is only one among several non-exhaustive factors laid out in the

governing regulation, all of which must be considered.

§ 208.16(c)(3) (“all evidence

relevant to the possibility of future torture shall be considered, including, but not limited

to” the factors in § 208.16(c)(3)(i)–(iv)). And once again, the agency’s guidance parallels

the regulatory regime, instructing that “the adjudicator must consider all relevant evidence,

including but not limited to the possibility of relocation within the country of removal.”

Training Manual at 40 (emphasis added). So it is not clear that the IJ’s relocation finding,

without more, was intended to dispose of Tomas-Ramos’s torture claim, or that if it was,

22 we could affirm the negative reasonable fear determination on that ground alone. Cf.

Ponce-de Ascencio v. Garland, No. 21-1147, slip op. at 17–18 (4th Cir. Jan. 12, 2022)

(affirming denial of CAT relief only because record indicates that agency did not restrict

its consideration to relocation alone).

But in any event, as we discuss above, the IJ’s relocation finding has been vacated

so that the agency may reconsider it in light of our holding that Tomas-Ramos has

established past persecution. It would make little sense to affirm the denial of Tomas-

Ramos’s torture claim on the basis of a finding we have directed the agency to rethink.

Because the IJ offered no other reason for concluding that Tomas-Ramos failed to establish

a reasonable fear of torture, we remand that claim for reconsideration, as well. See Diaz

de Gomez v. Wilkinson,

(4th Cir. 2021) (remanding all claims, including

claims for CAT protection, where agency erred in failing to give applicant the benefit of

the presumption of a well-founded fear of persecution).

III.

Finally, we briefly address Tomas-Ramos’s remaining argument: that the IJ

violated a statutory right to counsel by denying his counsel’s request to speak at the end of

his reasonable fear review hearing. Given our disposition of Tomas-Ramos’s underlying

claims, which we have remanded for a new hearing, we think it would be premature to

resolve this question today.

As noted above, the regulation governing these reasonable fear proceedings gives

applicants a right to counsel – and specifically, a right to have counsel make closing

23 arguments – at their initial interviews before asylum officers, but is silent as to any right to

counsel at IJ review hearings. Compare

(c) (asylum officer interview),

with

§ 208.31(g) (IJ review). And Tomas-Ramos has not asserted a right to counsel at

IJ review hearings under the regulations at § 208.31. He contends, however, that

noncitizens subject to reinstated removal orders have a statutory right to counsel under

, which provides generally that “[i]n any removal proceedings before an

immigration judge . . . the person concerned shall have the privilege of being represented

(at no expense to the Government) by such counsel, authorized to practice in such

proceedings, as he shall choose.” And he points for support to a recent decision from the

Ninth Circuit adopting that view. See Orozco-Lopez v. Garland,

, 777 (2021).

Tomas-Ramos, of course, was represented by counsel at his reasonable fear review

hearing before the IJ. His lawyers entered appearances on the record, filed a memorandum

with several exhibits, and had a colloquy with the IJ about that memorandum at the start of

the hearing. So it is important to be clear about the precise nature of Tomas-Ramos’s

objection. On appeal, Tomas-Ramos alludes to the possibility that his lawyers might have

conducted direct examination or otherwise participated during the review hearing. But

before the IJ, the only form of participation his lawyers sought and were denied was the

opportunity to make a closing statement after the IJ had indicated her decision. And even

then, they did not argue that they were entitled, under § 1362 or any other law, to that

opportunity.

On this record, and given the posture of this case, we see no need to resolve whether,

as the Ninth Circuit held in Orozco-Lopez, there is a general right to counsel in reasonable

24 fear review hearings before IJs. Even if there were such a right – a question on which, to

be clear, we take no position – Tomas-Ramos was represented by counsel before the IJ

here. The more specific right Tomas-Ramos is asserting – to have counsel make a closing

statement – is not addressed by Orozco-Lopez. And we need not address it now, because

this case is not over. Given our disposition of Tomas-Ramos’s substantive challenge to

the IJ’s negative reasonable fear determination, it will return to the agency for a new

hearing. At that hearing, we can expect that the IJ again will allow Tomas-Ramos to be

represented by counsel, and the IJ also may allow counsel to participate to the extent

Tomas-Ramos contends is required, obviating any need to address these issues. At a

minimum, counsel will have the opportunity to request whatever forms of participation

they believe to be required, and to object on the record if they are denied, giving the IJ an

opportunity to consider those objections and sharpening the issues for review. 9

IV.

For the reasons given above, the petition for review is granted, the agency’s

determination is vacated, and the case is remanded for further proceedings consistent with

this opinion.

PETITION FOR REVIEW GRANTED; VACATED AND REMANDED

9 For the same reason, we need not now address Tomas-Ramos’s argument that his Fifth Amendment due process right to a “meaningful opportunity to be heard,” see Rusu v U.S. INS,

(4th Cir. 2002), was violated when his counsel was not permitted to make a closing statement.

25