Third Circuit Judge Theodore McKee/courtesy photo

The Board of Immigration Appeals (BIA) handles thousands of cases every year, each of which has a profound and life-altering impact on aspiring immigrants that come before it and their families. Because a BIA decision can literally mean life or death for a petitioner, it is especially important that the BIA act fairly, impartially, and lawfully.

Given the importance of BIA decisions, it is distressing to learn, as we did in a recent Third Circuit decision, that the BIA has not been acting in the evenhanded, lawful manner to be expected of an adjudicative tribunal in the United States of America. It is also, however, gratifying to learn that the Third Circuit stands ready to right such injustices when those unfair rulings come before it for review. The case of Quinteros v. Attorney General of the United States, __ F.3d __ (Dec. 17, 2019) is an important decision because of the unusual strength with which the panel chastised the BIA for its deficient reasoning, although, as the court pointed out, it is only the most recent in a series of BIA cases reversed by the Third Circuit for similar reasons. The case is also unusual because a unanimous three-judge panel issued the primary decision (written by Judge Jane Roth) but then the same three judges joined in a blistering concurrence written by Judge Theodore McKee. It is the concurrence that deserves special attention.

In summary, the facts of the Quinteros case are as follows: Quinteros was a review of a final order of removal of Nelson Quinteros, a native of El Salvador whose mother brought him to this country when he was eight years old. When he was 13 years old, Quinteros joined the MS-13 gang, getting a New York Yankees tattoo that symbolized his MS-13 membership, and in his early 20s he was indicted and pleaded guilty to conspiracy to commit assault with a dangerous weapon, although no assault occurred. According to the opinion, while serving a 30-month prison sentence, Quinteros "left MS-13 to follow Christianity." When he completed his sentence, the Department of Homeland Security initiated expedited removal proceedings based on its claim that he was removable because he had been convicted of an aggravated felony.

Quinteros contested his removal, claiming under the Convention Against Torture (CAT) that he had a reasonable fear that he would be tortured in El Salvador and that the police there would not protect him and would perpetrate violence against him. Most relevant was evidence he presented, including that of a Harvard Law School clinic study that showed that he would be recognized in El Salvador as a gang member based on his tattoo and his New York accent. Evidence showed that former gang members deported to El Salvador had been harassed or killed.

An asylum officer determined that Quinteros had demonstrated reasonable fear that he would be tortured in El Salvador but an immigration judge (IJ) who heard his case found that even though Quinteros had shown a "clear likelihood" that he would be killed or tortured in El Salvador he had not shown that the Salvadoran police would be "blind to that torture." The IJ also held that Quinteros' crime was an aggravated felony. The BIA affirmed the IJ's decision but the Third Circuit remanded for a determination required by a recent Third Circuit case as to whether the Salvadoran government would more likely than not acquiesce in Quinteros' torture. On remand, the IJ adopted the findings of the first IJ with modifications, and the BIA again affirmed the denial of Quinteros' CAT claim but this time for unexplained reasons reversed the IJ's finding on the likelihood of torture as clearly erroneous. It is this second, most recent BIA decision that the Third Circuit so severely criticized in its Dec. 17, 2019, decision.

First, after a thorough technical analysis, the court held that Quinteros' conspiracy conviction was not for a crime of violence or an aggravated felony. Next, the court held that the BIA simply ignored evidence about Quinteros' tattoo and its significance when it concluded that the tattoo would not be visible under clothing—when the evidence had shown that police and gangs routinely force persons to strip precisely so they can search them for tattoos. Third, the court held that the BIA failed even to discuss how public officials would respond to the treatment feared by Quinteros and whether the El Salvadoran government "is capable of preventing the harm Quinteros would likely face." Thus, it vacated the removal order and remanded the case to the BIA for the necessary findings it had failed to make.

Judge McKee's concurrence, joined by the other two judges on the panel, is especially notable, important and admirable because of the focus it places on the BIA's deficient decision-making in this and other recent cases. Judge McKee stated:

"[I]it is difficult for me to read this record and conclude that the Board was acting as anything other than an agency focused on ensuring Quinteros' removal rather than as the neutral and fair tribunal it is expected to be. That criticism is harsh and I do not make it lightly."

He noted that Quinteros was found to be credible, that two IJs had found that he had shown he was likely to be killed or tortured if returned to El Salvador, that this evidence was not disputed by the government, and that the BIA itself in its first review of this matter affirmed this finding, but that "for reasons that are not at all apparent," the BIA suddenly reversed that finding, giving an explanation that "is both baffling and dismaying." Judge McKee noted that once a witness is found to be credible, his testimony cannot be arbitrarily rejected.

The concurrence says that the BIA's decision falls "far short" of the "low bar" requiring that it not act arbitrarily and "articulate a satisfactory explanation for its actions." It noted that the BIA's errors here "are not an isolated occurrence," citing "numerous examples" of the BIA's failure to apply binding circuit precedent. Quoting precedent, Judge McKee said, "the BIA's opinion frustrates our ability to reach any conclusion" and causes us to lack confidence "in an administrative system established for the fair and just resolution of immigration disputes. Most disturbing, these failures gravely affect the rights of petitioners … who allege that they will face torture or death if removed to their country of origin."

The concurrence concluded, describing the BIA as "the single most important decision-maker in the immigration system," "doubt[ing] that any court or any other administrative tribunal so regularly addresses claims of life and death" and therefore finding "particularly important that the opinions of the BIA fairly and adequately resolve the legal arguments raised by the parties and render decisions based only upon the record and the law." Finally, the concurrence expressed the judges' desire to be able to feel comfortable "that the lopsided outcomes in immigration proceedings reflect the merits of the claims for relief … rather than the proverbial 'rush to judgment.'" The public certainly would like to feel that confidence as well.