United States v. Barrett Prelogar

United States Court of Appeals
For the Eighth Circuit
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No. 20-1546
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Willian Ernesto Rubio Barahona
lllllllllllllllllllllPetitioner
v.
Merrick B. Garland, Attorney General of the United States
lllllllllllllllllllllRespondent
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Fair Trials Americas
lllllllllllllllllllllAmicus Curiae
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: November 18, 2020
Filed: February 3, 2021 (Amended April 15, 2021)
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Before BENTON, ERICKSON, and GRASZ, Circuit Judges.
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ERICKSON, Circuit Judge.

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Willian Rubio Barahona petitions for review of a decision by the Board of
Immigration Appeals (“BIA”) upholding the denial of his request for asylum and
withholding of removal, based on a finding that serious reasons exist to believe
Barahona committed a serious nonpolitical crime outside the United States. We hold
that the “serious reasons for believing” standard requires a finding of probable cause
before an alien can be subject to the mandatory bar set forth in 8 U.S.C.
§ 1158(b)(2)(A)(iii), 8 U.S.C. § 1231(b)(3)(B)(iii), and 8 C.F.R. § 1208.16(d)(2).
Because no such finding was made below, we reverse and remand for further
proceedings.
I. BACKGROUND
Barahona is a native and citizen of El Salvador who entered the United States
illegally in December 2012. His wife, Cecila Rivera de Rubio, came to the United
States a few years later and was granted asylum. On September 21, 2018, Cecila filed
a Form I-730 asylum petition on Barahona’s behalf. In reviewing the asylum petition,
agents with the Department of Homeland Security (“DHS”), U.S. Citizenship and
Immigration Services, performed a record check and discovered an Interpol Red
Notice dated July 2018 requesting Barahona’s extradition as a fugitive sought for
criminal prosecution in El Salvador. The underlying alleged crime was for
participating in an “illicit gathering” in violation of Article 345 of the Salvadoran
Penal Code. The Red Notice indicated that, according to an investigation conducted
in 2010, Barahona was identified by an informant to be a “gatillero”1 or “hit man” for
the Mara Salvatrucha (“MS-13”) criminal organization. An arrest warrant was issued
for Barahona in 2016.
1The exact meaning of “gatillero” is open to some dispute. Barahona testified
that the term may mean “hitman” or “delivery man.” The Interpol Red Notice uses
the phrase, “Barahona has the position of ‘gatillero’ [hit man] within the
organization.”
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Immigration and Customs Enforcement agents took Barahona into custody.
Because Barahona was determined to be a danger to the security of the United States,
his asylum petition was denied. On February 25, 2019, Barahona was charged with
being removable under 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United
States without having been admitted or paroled. On May 6, 2019, Barahona appeared
before an Immigration Judge (“IJ”) and, after conceding his removability, requested
asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”), based on his fear of MS-13 in El Salvador.
A hearing was held and Barahona testified that MS-13 shot his father in 2006
because he was a police sergeant investigating an MS-13 murder. His father survived
and fled to the United States. For three years, beginning when Barahona was 13 years
old, MS-13 extorted money from him and his mother. Barahona provided
contradictory testimony about his fear of MS-13. He denied being a member of MS-
13 or serving as a hit man. Barahona testified that on at least two occasions he
refused to follow directions from MS-13, including once when he declined to drive
a getaway car as part of a murder plot and another time when he refused to steal a
police uniform. Barahona also testified that he had served as a lookout for the police
on three occasions because he feared for his life if he refused.
Barahona also recounted a particular incident during the spring of 2010 when
MS-13 members forced him at gunpoint to walk with them. They saw a man whom
Barahona recognized as a police officer, but when the gang asked Barahona to
identify the man, he refused. MS-13 members ordered Barahona to rob the man.
Barahona approached the man, but returned empty-handed, claiming the man did not
have anything of value. When Barahona refused to hurt the man, one of the MS-13
members shot Barahona. When he awoke from surgery in the hospital, a police
officer told Barahona they found a gun under his belt and he was charged with
unlawful possession. When Barahona appeared in court, MS-13 members were
present so he was too afraid to tell the judge what had actually happened. Barahona
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testified that he never joined MS-13, even though they recruited him and threatened
to kill him.
Barahona admitted he entered the United States illegally in 2012. Cecila came
later, after she was raped by MS-13 members because she worked in the county
prosecutor’s office. Cecila also testified at the hearing and largely corroborated
Barahona’s statements.
DHS submitted evidence of the Red Notice and explained the standards to file
one. Barahona, in turn, submitted a letter from an attorney in El Salvador suggesting
the criminal charges against him had been dropped. DHS confirmed the Red Notice
remained active but was unable to verify by the time of the hearing whether the
underlying charges were still pending.
On August 16, 2019, the IJ denied Barahona’s applications for relief and
protection from removal, based on a finding that serious reasons exist to believe
Barahona committed serious nonpolitical crimes outside the United States. The IJ
also found it was not more likely than not that Barahona would be tortured in El
Salvador. Barahona appealed the IJ determination, arguing the Red Notice was
insufficient to establish probable cause that he committed a serious nonpolitical
crime, and that a violation of Article 345 does not constitute a serious nonpolitical
crime. Barahona did not appeal the findings with regard to his CAT claims.
In a decision dated March 6, 2020, the BIA dismissed Barahona’s appeal. The
BIA acknowledged that the “serious reasons for believing standard” is equivalent to
probable cause, and that – while Barahona bears the initial burden to prove eligibility
for asylum – DHS bears the burden to establish mandatory bars to relief. Because
DHS presented “some evidence” to establish that the bar may apply, the BIA
explained, the burden shifted back to Barahona to prove otherwise by a
preponderance of the evidence. Finding the Red Notice sufficient to meet the “some
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evidence” standard, the BIA upheld the denial of asylum. Barahona filed a timely
petition for review.
II. DISCUSSION
We review decisions of the BIA on questions of law de novo and accord
substantial deference to interpretations of immigration law and agency regulations.
Bernal-Rendon v. Gonzales, 419 F.3d 877, 880 (8th Cir. 2005) (citations omitted).
“We review factual determinations under the substantial evidence standard, reversing
only if the evidence is so compelling that no reasonable factfinder could fail to find
in favor of the petitioner.” Zheng v. Holder, 698 F.3d 710, 713 (8th Cir. 2012)
(quotation omitted).
A non-citizen may apply for asylum by establishing their eligibility as a
“refugee” who is unable or unwilling to return to their home country “because of
persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A); 8 U.S.C. § 1158(b)(1)(A). The law makes clear that the applicant
carries the initial burden to establish whether he satisfies the eligibility requirements
to obtain asylum or relief from removal. 8 U.S.C. § 1158(b)(1)(B)(i); 8 U.S.C. §
1229a(c)(4)(A).
However, an applicant is ineligible for asylum or withholding of removal for
several reasons, including where “there are serious reasons for believing that the alien
has committed a serious nonpolitical crime outside the United States” prior to his
arrival in the United States. 8 U.S.C. § 1158(b)(2)(A)(iii), 8 U.S.C. §
1231(b)(3)(B)(iii), and 8 C.F.R. § 1208.16(d)(2). As the BIA explained, and the
parties here agree, the “serious reasons for believing” standard is equivalent to
probable cause. Matter of E-A-, 26 I. & N. Dec. 1, 3 (2012). Barahona argues,
however, that the BIA erred by accepting the Red Notice as “some evidence” to
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establish the mandatory bar under 8 U.S.C. § 1158(b)(2)(A)(iii), 8 U.S.C. §
1231(b)(3)(B)(iii), and 8 C.F.R. § 1208.16(d)(2), without a finding of probable cause.
The BIA cites to Matter of M-B-C-, for the principle that the “serious reasons
for believing” standard is not an onerous one. 27 I. & N. Dec. 31, 36–37 (2017).
There, the underlying application was denied after the IJ found the applicant
“ordered, incited, assisted or otherwise participated in” genocide. Id. at 33.
However, that particular mandatory bar does not have the same “serious reasons for
believing” standard that is required to prove “serious nonpolitical crimes” under 8
U.S.C. § 1158(b)(2)(A)(iii), 8 U.S.C. § 1231(b)(3)(B)(iii), and 8 C.F.R. §
1208.16(d)(2).
In contrast, in Matter of E-A-, the BIA determined that probable cause is
required to meet the “serious reasons for believing” standard. 26 I. & N. Dec. at 3.
In that case, the BIA affirmed the denial of relief based on the petitioner’s own
testimony that he committed the crimes. Id. Courts have affirmed the denial of relief
if the petitioner admitted the alleged crime or there was corroborating information
supporting the alleged crime. See, e.g., Go v. Holder, 640 F.3d 1047, 1052 (9th Cir.
2011) (upholding the denial of relief on the basis that probable cause existed to
believe petitioner actually committed the alleged drug crimes based on his own
admissions); Khouzam v. Ashcroft, 361 F.3d 161, 166 (2d Cir. 2004) (upholding the
denial of relief based on the IJ’s review of police investigative reports and accounts
of injuries sustained by petitioner, which were consistent with the alleged crime). In
a case involving a Red Notice, the court found probable cause was satisfied after the
government submitted “substantial evidence” that petitioner committed manslaughter,
which included the Red Notice, trial records, sentencing order, and letters from the
Chief of Police in El Salvador. Marroquin-Retana v. Attorney General, 675 F. App’x
216 (3d Cir. 2017) (unpublished).
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The statutory framework and relevant case law direct us to require something
more than “some evidence” in order to meet the probable cause standard in cases
involving “serious reasons for believing” that a serious nonpolitical crime was
committed. The parties did not cite, and we could not find, a case in which a court
has found a Red Notice, alone, is sufficient to meet this standard. Also complicating
the analysis in this case is whether or not the charges giving rise to the Red Notice
had been dismissed. Barahona submitted evidence that the charges had been
dismissed. DHS did not refute and did not ask for additional time to resolve whether
this was accurate. The BIA erred in this case when it failed to make a probable cause
finding, particularly in light of the dispute regarding the underlying criminal charges
that gave rise to the Red Notice.
Barahona also argues the BIA incorrectly applied a “clearly erroneous”
standard of review, rather than reviewing the case de novo. Barahona acknowledges,
however, that the BIA is authorized to employ a dual standard of review. That is,
“questions of law, discretion, and judgment” are reviewed de novo, while factual
findings – including questions of credibility – shall be reviewed under a clearly
erroneous standard. 8 C.F.R. § 1003.1(d)(3)(i)–(ii). The BIA’s task was to “accept
the facts as found by the IJ and determine de novo” whether Barahona was eligible
for relief. Waldron v. Holder, 688 F.3d 354, 361 (8th Cir. 2012) (reversing the BIA
after it engaged in inappropriate factual findings). Under our precedent, we find no
error with the method of analysis the BIA used.
Finally, Barahona argues the crimes charged in El Salvador do not meet the
definition of a serious nonpolitical crime. “The evaluation of a serious nonpolitical
crime is conducted on a case-by-case basis considering the facts and circumstances
presented.” Matter of E-A-, 26 I. & N. Dec. at 3. Barahona was charged with illicit
gathering, a violation of Article 345 of the Salvadoran Penal Code, related to events
involving MS-13. The IJ reviewed the charging statute and determined the crime
involved a substantial risk of violence and harm to a person. Id. at 3 & n.3. The IJ
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also noted the alleged crime lacked any political character, and indeed Barahona
conceded it was nonpolitical. We find no clear error in the agency’s determination
that the charged crimes were of a serious nonpolitical nature.
III. CONCLUSION
Because the BIA failed to make a probable cause finding to support the
mandatory bar set forth in 8 U.S.C. § 1158(b)(2)(A)(iii), 8 U.S.C.
§ 1231(b)(3)(B)(iii), and 8 C.F.R. § 1208.16(d)(2), we reverse and remand for
proceedings consistent with this opinion.
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