NERY SALGUERO SOSA V. MERRICK GARLAND, No. 19-70961 (9th Cir. 2023)
Annotate this CaseThe Ninth Circuit denied a petition for panel rehearing and a sua sponte request for rehearing en banc in a case in which the panel: (1) held that the Board of Immigration Appeals legally erred by failing to conduct cumulative-effect review in assessing petitioner’s evidence of past persecution, and (2) remanded for the BIA to reassess the evidence under the correct legal framework.
Court Description: Immigration The panel denied a petition for panel rehearing and a sua sponte request for rehearing en banc in a case in which the panel: (1) held that the Board of Immigration Appeals legally erred by failing to conduct cumulative-effect review in assessing petitioner’s evidence of past persecution, and (2) remanded for the BIA to reassess the evidence under the correct legal framework.
Concurring in the denial of rehearing en banc, Judge M.
Smith addressed the dissent’s inaccurate discussion of the facts and law in this case. Judge M. Smith wrote that despite the dissent’s claim, the panel’s decision did not invent the cumulative-effect-review requirement; rather that interpretation of the asylum and withholding regulations has been a part of Ninth Circuit and BIA precedent for a quarter century. Judge M. Smith also wrote that it is black-letter law that this court reviews de novo the legal contention that the agency erred by failing to conduct the required cumulative error review, and that where this court finds that the agency erred by failing to consider the cumulative effect, it cannot reach the agency’s bottom-line determination that no past persecution occurred, and instead must remand for the agency to reconsider its determination applying the correct the legal standard.
Dissenting from the denial of rehearing en banc, Judge Callahan, joined by Judges Ikuta, R. Nelson, Bumatay, and VanDyke, wrote that the panel could have held that remand was required because the BIA failed to consider petitioner’s argument that the immigration judge erred by failing to consider his past harm cumulatively. Instead, the majority opinion—based on a misreading of this court’s prior opinions and without consideration of the practical consequences—unnecessarily created a new requirement that when determining whether a petitioner’s past mistreatment rises to the level of persecution, the BIA must apply cumulative-effect review. Judge Callahan wrote that this court’s evaluation of the agency’s analysis of cumulative effect should remain a part of this court’s substantial evidence review, where a lack of analysis of cumulative effects may indicate that the agency’s decision is not supported by substantial evidence in the record. However, there is no support for the proposition that the BIA’s failure to consider the cumulative effect of alleged incidents of past persecution amounts to a legal error. Judge Callahan also reiterated, as noted by Judge Wu in his partial concurrence, that the opinion provides no guidance on how the agency should carry out such a new, mandatory cumulative-effect review.
This opinion or order relates to an opinion or order originally issued on December 16, 2022.
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