December Litigation Updates

Escobar Larin v. Garland, Nos. 23-2088, 24-1428 (1st Cir. Dec. 5, 2024)

Facts & Background

• Mr. Escobar Larin, a citizen of El Salvador, first entered the United States in 2004. He was placed in removal proceedings in February 2022 and in April 2022 applied for asylum, withholding of removal, and protection under the Convention Against Torture (Act) based on his membership in two broad categories of particular social groups (PSGs): "(1) mental illness-based PSGs, which were 'Salvadorans with unspecified schizophrenia spectrum and other psychotic disorders who exhibit erratic behavior' and 'Salvadorans with disabilities'; and (2) a gang-based PSG defined as 'persons who take concrete steps to oppose gang authority.'" He also sought humanitarian asylum "based on past persecution and a risk of 'other serious harm' in relation to several family-based PSGs, which included 'grandchildren of [his grandmother],' 'members of [his grandmother's] nuclear family,' and 'familial members of [his grandmother's] household.'" His amended asylum application further claimed asylum based on political opinion and identified "the targeted political opinion as an 'imputed, anti-gang political opinion' due to his refusal to join the notorious transnational gang, MS-13."
• Mr. Escobar Larin argued that the one year deadline did not bar his asylum application based on changed and extraordinary circumstances, including his development of serious mental illness after he arrived in the United States, status as a minor when he arrived in the United States in 2004, and diagnosis of schizophrenia in 2022. He submitted a psychiatrist report in support of his application and a report from the United Nations Committee on the Rights of Persons with Disabilities.
• The immigration judge (IJ) found Mr. Escobar Larin to be a credible witness but denied his claims for relief because he had failed prove extraordinary or changed circumstances, and thus his asylum application was barred by the one year deadline. Moreover, even if the one year bar did not apply, the IJ held that the asylum claim failed and denied his claims for withholding of removal and CAT protection.
• The BIA affirmed the denial of the asylum claim and remanded the withholding of removal and CAT claims to the IJ for further fact finding.
• The IJ again denied relief, and the BIA affirmed the IJ's ruling in full on appeal.
• While his petition for review was pending with the First Circuit, Mr. Escobar Larin filed a motion to reopen proceedings with the BIA based on new evidence from an expert witness about country conditions in El Salvador. The BIA denied the motion to reopen.

Notable Holdings & Rationale 

• The First Circuit affirmed the BIA's denial of the motion to reopen, concluding that the expert affidavits did not constitute new evidence that warranted reopening.
• But the BIA vacated and remanded on the issue of whether Mr. Escobar Larin's asylum application was barred by the one year deadline. First, it concluded that it had jurisdiction to review the issue because it raised a question of law as to whether the agency applied the wrong changed-circumstances standard. Second, the First Circuit found that "the agency erred as a matter of law in rejecting his contention that he had satisfied the changed-circumstance exception, such that his application was not properly deemed untimely," reasoning that "every circuit to have examined the issue has concluded, like the Sixth Circuit in Mandebvu v. Holder, that 8 U.S.C. § 1158(a)(2)(D) does not impose the requirement that we understand the agency to have imposed in Escobar's case." In remanding for further consideration of the issue, the First Circuit "express[ed] no view on the ultimate merits of the issues that remain in dispute."
• Having vacated and remanded on the asylum issue, the First Circuit also granted the petition for review on the withholding of removal claim because the BIA's reasoning was based on solely on the outcome of the asylum claim.
• For the CAT claim, the First Circuit also considered if the BIA failed to consider the evidence of risk of torture in the aggregate. It acknowledged that several other circuits have adopted an aggregate risk standard, but that the issue has not been decided in this circuit. Because the Attorney General had not taken a position on whether the aggregate standard applied in this case, the First Circuit vacated the denial of the CAT claim and remanded for further consideration by the BIA because "we find it prudent to provide the agency the opportunity to assess the scope and applicability of the aggregate standard in the first instance, including any questions of exhaustion or waiver that may be in play."