Background
Marcos Fernando Duron Gonzalez, a citizen of Mexico, petitioned for review of a Board of Immigration Appeals decision upholding an Immigration Judge’s denial of his application for deferral of removal under the Convention Against Torture. The Immigration Judge had initially set an evidentiary submission deadline of April seventeenth but postponed the hearing without explicitly extending that deadline. The petitioner, proceeding without counsel, submitted country conditions evidence on August twenty-seventh, which the Immigration Judge later refused to consider because the petitioner had not identified it earlier in the hearing.
The court’s reasoning
The court held that the Immigration Judge abused his discretion by refusing to consider the country conditions evidence. Although the petitioner was pro se, the Immigration Judge had admitted other exhibits submitted after the deadline and had not explicitly stated that late evidence would be excluded. The court found it arbitrary to refuse a pro se litigant the opportunity to correct an oversight before the close of evidence. Furthermore, the Board of Immigration Appeals engaged in impermissible appellate factfinding by determining that the petitioner failed to show a particularized risk of torture, a factual determination reserved for the Immigration Judge. The court also noted that the agencies failed to consider the aggregate risk of torture from all possible sources, including the risk of being mistaken for a rival by cartel members.
What it means going forward
The case is remanded to the Board of Immigration Appeals with instructions to reconsider the Torture Convention claim in light of the previously excluded country conditions evidence.