Pro Bono Spotlight: Making Waves at the 10th Circuit (full letter)
Recently, the 10th Circuit issued two published decisions upholding the rights of asylum-seekers and immigrants in removal proceedings. In both cases, the petitioners were represented by RMIAN attorneys before the Board of Immigration Appeals (BIA) and connected with representation for their petitions for review through RMIAN’s pro bono program. We write today to uplift these victories and congratulate Mr. Takwi and Mr. Villegas-Castro, their pro bono counsel, and those who provided support along the way.
The first decision, published by the 10th Circuit on December 2nd, 2021, came in Villegas-Castro v. Garland. Mr. Villegas Castro is from Mexico and applied for asylum, withholding of removal, relief under the Convention against Torture and cancellation of removal before the immigration judge (IJ). The IJ initially granted cancellation of removal but denied fear-based relief. The Department of Homeland Security (DHS or Department) appealed and the Board sustained the appeal, remanding the case to the IJ. On remand, Mr. Villegas Castro amended and supplemented his prior asylum application, which the IJ ultimately granted. Again, the Department appealed the court’s decision and the Board not only reversed the IJ’s decision but entered a final order of removal against Mr. Villegas Castro.
In a published decision, the 10th Circuit addressed three issues: (1) the scope of the IJ’s authority when the Board orders a remand; (2) the BIA’s failure to apply the correct standard of review to the IJ’s factual findings; and (3) the IJ’s discretion to reconsider eligibility for fear-based relief. On all three issues, the Court ruled in Mr. Villegas Castro’s favor, granting his petition for review and remanding his case back to the Board. The decision is a remarkable victory for Mr. Villegas Castro, who now has a pathway to remain in the United States with his family and community in Wyoming, and sets powerful precedents for immigrants in removal proceedings in the 10th Circuit.
Mr. Villegas-Castro was represented by a RMIAN attorney before the IJ and BIA and by the National Immigrant Justice Center (NIJC) and pro bono counsel at Harry Larson and Dentons U.S. LLP before the 10th Circuit.
Just a month after this decision, on January 10th, 2022, the 10th Circuit published a second favorable decision in Takwi v. Garland. This case primarily focuses on credibility determinations. Mr. Takwi is an asylum-seeker from Cameroon who fled persecution due to his involvement in the Southern Cameroon National Council (SCNC), a political organization fighting against the marginalization of anglophone Cameroonians by the majority-francophone government. Mr. Takwi appeared pro se before the IJ while detained at the Aurora ICE Processing Center. Despite gathering and presenting his own evidence, the IJ denied his claim based on perceived inconsistencies between Mr. Takwi’s testimony and an affidavit from his brother. This decision was upheld by the BIA, which treated the IJ’s ruling as an adverse credibility determination and declined to consider corroborating evidence from seven other witnesses submitted in a concurrently filed motion to remand.
Mr. Takwi petitioned for review in the 10th Circuit, arguing that (a) the BIA should have afforded him a presumption of credibility because the IJ never made an explicit credibility determination, (b) caselaw does not allow an IJ to reject an applicant’s otherwise credible testimony based solely on errors in a family member’s affidavit, (c) the IJ failed to provide Mr. Takwi proper safeguards in light of conflicting medical evidence in the record, and (d) the BIA abused its discretion by ignoring the corroborating evidence.
In a unanimous decision, the 10th Circuit granted Mr. Takwi’s petition for review and ordered the Board to revisit its decision. Although the Court found no error in the IJ’s determination that Mr. Takwi was competent to proceed pro se, the Court held that the BIA had erred by failing to afford Mr. Takwi a presumption of credibility, which is required when an IJ does not make an explicit credibility determination. The Court noted that the reluctance to make clean determinations of credibility appears to be a “disturbing feature” in immigration cases nationwide, and that the IJ had not made an explicit finding in Mr. Takwi’s case. The Court explained: “An ambiguous finding, which leaves us guessing about whether the IJ came to her determination because the applicant was not credible, or for some other reason, cannot serve as an explicit adverse credibility determination”. The decision revives Mr. Takwi’s opportunity to seek relief and sets an incredibly helpful precedent for future litigants where this issue is presented.
Mr. Takwi was nearly deported before his case could be heard. A year ago, in January 2021, Mr. Takwi was rousted out of bed in the middle of the night and transferred from the ICE facility in Colorado to another site in Louisiana, where he was to be sent back to Cameroon along with other refugees on what journalists would call a “death flight.” In the eleventh hour, the 10th Circuit granted Mr. Takwi an emergency stay, stopping his deportation and allowing him to remain in the United States until his petition could be decided on the merits.
Mr. Takwi was represented by a RMIAN attorney before the BIA and by Jesse Witt of Frascona, Joiner, Goodman and Greenstein in Boulder before the 10th Circuit. Mr. Witt expressed thanks to those who supported him, stating “As someone with little prior experience in immigration law, I was grateful to have assistance from RMIAN and the Immigration Justice Campaign when drafting the briefs and preparing for oral argument. Taking this case pro bono was extremely rewarding and I encourage others with a civil litigation practice to consider volunteering their time through RMIAN.”
Congratulations to Mr. Villegas-Castro and Mr. Takwi, whose resilience in the face of injustice inspires us to keep fighting, and to their pro bono counsel for their tireless efforts. These victories would not have been possible without you.
Interested in taking a case or learning more? Visit our website or email probonodetention@rmian.org. Current cases in need of representation through RMIAN's Children's Program and Detention Program are available at the links provided.