Oswaldo Favio Dominguez Ojeda, a citizen of Peru, faced reinstatement of a prior removal order by the Department of Homeland Security. He claimed fear of persecution by a political group called Peru Libre, citing five incidents of violence and threats, including physical assaults and a fire set in his home. An asylum officer conducted a reasonable fear screening and made a negative determination. When Dominguez Ojeda requested a review of this decision before an immigration judge, he attempted to introduce new evidence, including testimony that he had been raped by Peru Libre members and country conditions reports regarding the difficulty survivors of sexual assault face in reporting crimes. The immigration judge refused to consider this new evidence, stating that he could only review what the asylum officer had considered and that it would be unfair to conduct a de novo review of a record containing new facts. Although the judge cited the Ninth Circuit's decision in Alvarado-Herrera v. Garland, he erroneously concluded that he lacked the authority to consider the new evidence rather than exercising his discretion to admit or reject it.
The court analyzed the legal framework governing reasonable fear hearings. Under the regulations, a non-citizen must first pass a screening interview with an asylum officer to show a reasonable fear of persecution or torture. If the officer makes a negative determination, the non-citizen is entitled to a de novo review by an immigration judge. While the immigration judge sits in an appellate capacity reviewing the asylum officer's record, the court clarified that the judge has the discretion to consider evidence that was not presented to the asylum officer. The court relied on Alvarado-Herrera v. Garland, which established that due process does not mandate the right to present new evidence to an appellate tribunal, but it does require the tribunal to exercise discretion before rejecting such evidence. The court found that the immigration judge here committed legal error by acting on the premise that he lacked the authority to consider new evidence. The judge's statements made clear he believed he could not review evidence the asylum officer did not address, a view the court deemed erroneous. The court noted that a passing citation to Alvarado-Herrera did not cure this error, as the judge failed to actually exercise the discretion required by law. The court compared this to sua sponte reopening cases where the Board of Immigration Appeals errs by concluding it lacks authority rather than denying a motion as an exercise of discretion.
The case is remanded to the immigration judge with instructions to exercise discretion regarding the new evidence of rape and country conditions. The immigration judge must now evaluate whether to admit this evidence before making a final determination on the reasonable fear claim. The court did not reach the question of whether the evidence would substantiate the claim, leaving that for the immigration judge to decide on remand. This decision clarifies that immigration judges must actively exercise discretion when faced with new evidence in reasonable fear hearings, rather than automatically excluding it based on a misunderstanding of their authority.
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