Villegas-Castro v. Garland


Appellate Case: 20-9593 Document: 010110613320 Date Filed: 12/02/2021 Page: 1 FILED United States Court of Appeals Tenth Circuit PUBLISH December 2, 2021 UNITED STATES COURT OF APPEALS Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ GABRIEL VILLEGAS-CASTRO, a/k/a Gabreil Villegas, Petitioner, No. 20-9593 v. MERRICK B. GARLAND, United States Attorney General, Respondent. ________________________________ PROFESSOR JUAN E. MÉNDEZ; DISABILITY RIGHTS INTERNATIONAL, Amici Curiae. _________________________________ PETITION FOR REVIEW OF AN ORDER FROM THE BOARD OF IMMIGRATION APPEALS _________________________________ Harry Larson, formerly of Quinn Emanuel Urquhart & Sullivan, LLP, Chicago, Illinois (Andrew H. Schapiro, Quinn Emanuel Urquhart & Sullivan, LLP, Chicago, Illinois, and Keren Zwick and Tania Linares Garcia, National Immigrant Justice Center, Chicago, Illinois, with him on the briefs), on behalf of the Petitioner. Rachel Browning, Trial Attorney, U.S. Department of Justice, Office of Immigration Litigation, Washington, D.C. (Brian Boynton, Acting Assistant Attorney General, and Keith I. McManus, Assistant Director, U.S. Department of Justice, with her on the brief), on behalf of the Respondent. Appellate Case: 20-9593 Document: 010110613320 Date Filed: 12/02/2021 Page: 2 Simon A. Steel, DENTONS US LLP, Washington, D.C., and Grace M. Dickson, DENTONS US LLP, Dallas, Texas, filed a brief for Amici Curiae, on behalf of Petitioner. _________________________________ Before BACHARACH, KELLY, and CARSON, Circuit Judges. _________________________________ BACHARACH, Circuit Judge. _________________________________ Mr. Gabriel Villegas-Castro is a Mexican citizen who entered the United States without being admitted or paroled. The government sought removal, and Mr. Villegas-Castro requested asylum, cancellation of removal, withholding of removal, and protection under the Convention Against Torture. The Board of Immigration Appeals ordered removal and rejected all of Mr. Villegas-Castro’s requests. We address three issues. The scope of the immigration judge’s authority when the Board orders a remand. The first issue involves the immigration judge’s authority when the Board of Immigration Appeals orders a remand. Mr. Villegas-Castro initially lost his bid for asylum but obtained cancellation of removal. The Board remanded to the immigration judge to reconsider the cancellation of removal. On remand, Mr. Villegas-Castro filed a new asylum application and obtained relief. The government appealed and the Board reversed, concluding that the second application was not new and Mr. Villegas-Castro hadn’t shown a change in circumstances. We conclude that 2 Appellate Case: 20-9593 Document: 010110613320 Date Filed: 12/02/2021 Page: 3  the immigration judge properly considered the second application for asylum and  the Board’s reasoning doesn’t support its denial of asylum. The Board’s failure to apply the clear-error standard to the immigration judge’s factual findings. The second issue involves the Board’s standard when reviewing an immigration judge’s findings on credibility. Under federal law, a noncitizen loses eligibility for asylum and withholding of removal when convicted of a particularly serious crime. 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B),(ii); 8 C.F.R. § 1208.16(d)(2). Invoking the bar for persons convicted of a particularly serious crime, the government argued that Mr. Villegas-Castro had lost eligibility when he was convicted of sexual battery. To resolve this argument, the immigration judge  considered the underlying facts and the credibility …

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