October Litigation Updates

Cordero-Chavez v. Garland, No. 21-60370 (5th Cir. Oct. 4, 2022) - Oct. 4, 2022  

Facts & Background

• Cordero-Chavez is a citizen of El Salvador who entered the United States in July 2014 and was in expedited removal proceedings. Cordero-Chavez expressed fear of her former boyfriend, a current MS-13 gang member, who abused Cordero-Chavez. Cordero-Chavez then had a credible-fear interview (CFI), where the officer determined that Cordero-Chavez did not have a credible-fear of persecution. However, the immigration judge (IJ) reversed the officer's findings, and Cordero-Chavez then received full removal proceedings. 
•  At her first hearing, the IJ asked Cordero-Chavez's lawyer what relief was being sought, and the attorney responded "asylum and withholding of removal (WOR)" - not mentioning the Convention Against Torture (CAT). Cordero-Chavez applied for asylum and WOR. She did not apply for relief under CAT, and the CAT box was left blank on her I-589. 
• The IJ denied Cordero-Chavez's application for asylum and WOR because the IJ did not find Cordero-Chavez credible due to inconsistencies in her testimony at the hearing, on her asylum application, and in her credible fear interview.  
• Cordero-Chavez appealed the IJ's denial to the Board of Immigration Appeals (BIA), appealing the IJ's credibility finding and asserting that the IJ failed to consider her CAT claim. BIA affirmed the IJ’s credibility finding and also concluded Cordero-Chavez did not raise a claim under CAT before the IJ. The BIA dismissed the appeal.  
• Cordero-Chavez then petitioned the Fifth Circuit for review, arguing that the IJ and BIA (1) erred in not finding Cordero-Chavez's testimony credible and (2) erred in failing to consider her CAT claim. The Fifth Circuit denied the petition for review on both counts, (1) finding that the IJ's denial based on credibility was within her authority and that (2) the IJ and BIA did not err in concluding that Cordero-Chavez failed to raise a CAT claim.

Notable Holdings & Rationale 

• Cordero-Chavez petitioned the Fifth Circuit for review, arguing that the IJ and BIA (1) erred in not finding Cordero-Chavez's testimony credible and (2) erred in failing to consider her CAT claim.  
• The Fifth Circuit denied Cordero-Chavez's petition for review on both counts, (1) finding that the IJ's denial based on credibility was within her authority and that (2) the IJ and BIA did not err in concluding that Cordero-Chavez failed to raise a CAT claim.

Ndifon v. Garland, No. 20-60997, 2022 WL 4939376 (5th Cir. Oct. 4, 2022) - Oct. 4, 2022

Facts & Background

• Ndifon is a citizen of Cameroon who entered the United States in 2017, and the Department of Homeland Security (DHS) served him with a Notice to Appear (NTA) in 2019. Ndifon admitted to removability but requested relief in the forms of asylum, withholding of removal, and CAT.  
• Ndifon's claim is based on fear to return to Cameroon due to persecution and torture by the Cameroon military based on Ndifon's status as an Anglophone Cameroonian and member of the Southern Cameroon National Council.  
• During the hearing, Ndifon testified. He also submitted country condition evidence to support his claim that the Cameroonian state tortures Anglophones.  
• IJ found Ndifon not credible – stating that Ndifon's testimony was inconsistent and implausible – and denied Ndifon's asylum and WOR claims. Regarding the CAT claim, the IJ first found that Ndifon failed to establish past torture. The IJ then specifically addressed the country conditions articles and reports that Ndifon provided, which detail mistreatment of Anglophones in Cameroon. However, the IJ also recognized articles submitted by DHS suggesting the ruling government is taking steps to resolve the Anglophone conflict. The IJ held that Ndifon failed to establish by clear and convincing evidence that the Cameroonian government would more likely than not torture him upon his return to Cameroon or that he would suffer torture with the consent or acquiescence of Cameroonian officials.  
• The BIA did not find the IJ's credibility finding clearly erroneous, and the BIA affirmed the IJ's denial of the asylum and WOR claims. Regarding the CAT claim, the BIA upheld the IJ's denial of protection under CAT "because the respondent’s claim . . . is based on the same testimony the [IJ] found not credible, and the respondent points to no other objective evidence to support his claim.” However, Ndifon did offer country condition evidence to support his CAT claim as well.

Notable Holdings & Rationale

• Ndifon petitioned the Fifth Circuit for review of the BIA's decision affirming the IJ's denial of his claim for protection under CAT. Ndifon claimed that the BIA failed to consider country conditions evidence when separately analyzing his CAT claim from asylum and WOR.  
• Specifically, Ndifon found the BIA's statement "because the respondent’s claim . . . is based on the same testimony the [IJ] found not credible, and the respondent points to no other objective evidence to support his claim” to show that the BIA did not consider the country condition evidence at all and thus erred.  
• The Fifth Circuit concluded that the BIA’s statement “raises too great a concern that the BIA did not adequately consider the evidence before it.” (citing Emmanuel-Tata, 2022 WL 126982, at *3). The Fifth Circuit further elaborated that Ndifon did point to other evidence – aside from his own testimony – to support the CAT claim.  
• The Fifth Circuit agreed with Ndifon and granted the petition for review and remanded for further consideration of the CAT claim, expressing no opinion on the merits of the claim itself.

State of Texas v. USA, No. 21-40680 (5th Cir. Oct. 5, 2022) - Oct. 5, 2022

Facts & Background 

• Eight states and the governors of two states, led by Texas, challenge the validity of the Deferred Action for Childhood Arrivals (DACA) program. DACA was set forth in the DACA Memorandum, issued in 2012 by former Secretary of Homeland Security Napolitano.  
• In ruling on competing motions for summary judgment, the district court held that the DACA Memorandum violates procedural and substantive requirements of the Administrative Procedure Act (APA).  
• The district court then vacated the DACA Memorandum and remanded to DHS for further consideration but temporarily stayed that vacatur as it applies to current DACA recipients. The district court further ruled that DHS may continue to accept new and renewal DACA applications but enjoined DHS from approving any new DACA applications and accompanying requests for employment authorization.

Notable Holdings & Rationale 

• The Fifth Circuit affirmed the district court’s judgment in part, but remanded to the district court, rather than to DHS, in light of a Final Rule promulgated by DHS in August 2022.  
• The Fifth Circuit stated in their opinion, "A district court is in the best position to review the administrative record in the rulemaking proceeding and determine whether our holdings as to the 2012 DACA Memorandum fully resolve issues concerning the Final Rule."

Ndudzi v. Garland, No. 20-60782, 2022 WL 9185369 (5th Cir. revised Oct. 13, 2022) (previously 41 F.4th 686) - Oct. 13, 2022

CILA previously reviewed this case in the "July Litigation Updates" blog post. The Fifth Circuit originally issued the case as a published decision, but de-published the case in October 2022. During the CILA-NILA webinar "Litigation for Unaccompanied Children: Updates and Foundational Cases"  held on October 19, 2022, NILA staff members provided a verbal summary of Ndudzi. View the webinar recording starting at 44:31 regarding this particular case, and read page 10 of the accompanying written materials for a case summary to learn about the changes the Fifth Circuit made when the case was de-published. 

Guevara-Fabian v. Garland, No. 20-60627 (5th Cir. Oct. 25, 2022) - Oct. 25, 2022

Facts & Background 

• Guevara-Fabian and her daughter, Genesis, are citizens of El Salvador. Genesis is a derivative on Guevara-Fabian's application for asylum.  
• Guevara-Fabian seeks asylum and WOR based on membership in a proposed particular social group (PSG), which she describes as “family member of Jose Amadeo Fabian.” Jose Amadeo Fabian is Guevara-Fabian's uncle, who was beaten and attacked for not smuggling contraband into the prison where he worked.  
• Guevara-Fabian's asylum and WOR claim is based on extortion that she experienced as a business owner in El Salvador. Guevara-Fabian had to pay sums of money in order to prevent harm to herself and her family, and she was targeted as a business owner.   
• IJ denied Genesis and Guevara-Fabian's asylum and WOR claims, finding that a factual nexus did not exist between Guevara-Fabian's familial relationship to her uncle and the harm that she experienced.

Notable Holdings & Rationale 

• The Fifth Circuit denied Guevara-Fabian's petition for review, finding that Guevara-Fabian failed to establish that she is eligible for asylum and therefore “also fail[ed] to establish eligibility for withholding of removal.”  
• In the Fifth Circuit's denial, the Fifth Circuit did not find, in the record, that Guevara-Fabian possesses a well-founded fear of persecution – elaborating that Guevara-Fabian's uncle did not experience further harm; her family members in El Salvador are not continuing to be harmed or threatened; and she no longer owns the business that made her the subject of the extortion scheme.