Fourth Circuit: Immigration Judges and Asylum Applicants Are Scrabble Teammates

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In a long opinion yesterday in Arevalo-Quintero v. Garland, a Fourth Circuit panel addressed “an important question of first impression in our Circuit: whether immigration judges have a legal duty to develop the record.” The fact that such an elementary question would be a matter of “first impression” after so many years of applying our immigration laws makes me suspect that the answer must be no. But Judge James Wynn’s 61-page majority opinion, joined by Judge Henry Floyd, provides a resounding “Yes!” answer to that question. And Judge Diane Motz, in a one-sentence concurrence in the judgment, broadly agreed.

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Judge Wynn’s majority opinion strikes me as extraordinary in several respects:

1. Wynn holds that immigration judges have a legal duty to “fully develop the record” in “all cases” they decide, and he states that this duty is “especially crucial in cases involving unrepresented noncitizens” (i.e., pro se cases). What does it mean to “fully develop the record” in pro se cases? Immigration judges must “adequately explain[] the hearing procedures and the relevant legal requirements in plain language,” “must provide respondents with sufficient guidance as to how they may prove the elements of their claims,” must “probe into, inquire of, and elicit all facts relevant to a respondent’s claims,” and “must be especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited.”

But even that is not enough: “we emphasize that the scope and substance of immigration judges’ duty to develop the record in pro se cases are not limited to what we describe here.” Rather, “what the aforesaid duty requires of an immigration judge inevitably depends on the particulars of each case—the respondent’s characteristics, such as age, education level, detention status, and immigration history; the applicable ground(s) of removability; and the form(s) of relief sought.”

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2. On the particular issue whether an alien “seeks asylum or withholding of removal based on his or her membership in a particular social group, the immigration judge has a duty to fully develop the record as to the factual bases for that claim and to help the respondent articulate a cognizable social group supported by those facts—to the extent that one can be found.” Wynn embraces a Scrabble analogy provided by an amicus group of former immigration judges:

Consider the respondent’s facts (presented as testimony and in documents) like the tiles in Scrabble, but the respondent does not speak English and cannot spell. The respondent can only use the letters on the tiles, but very well may not know what English words they can spell. Without help, the respondent could never win – and can’t even meaningfully participate. The role of the [immigration judge], in this analogy, is to help the respondent determine whether those tiles spell words. The [immigration judge] cannot give the respondent new tiles (in immigration court, supply new facts), but can ask to see the tiles, and then explain how to form a word from them. [Bracketed material in opinion.]

At the same time, Wynn contends that his ruling is not improperly turning immigration judges into attorneys for the asylum applicants. Just Scrabble teammates.

3. Wynn refuses to accord deference to a Board of Immigration Appeals decision holding that an asylum applicant has the burden of specifying on the record before the immigration judge “the exact delineation of any particular social group(s) to which she claims to belong” and that failure to do so will generally forfeit the issue on appeal to the BIA.

4. In this particular case, the immigration judge had found Arevalo-Quintero’s testimony on core points to be not credible. But Wynn determines that circuit precedent requires him instead to “assume that [Arevalo-Quintero] testified credibly” because the BIA did not “expressly affirm” the immigration judge’s credibility ruling. I’ll take Wynn’s word that circuit precedent requires that result. But how strange it is—and what a telltale sign of the mess our immigration system is—that there wouldn’t be deference to the immigration judge’s credibility determination.

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