BIA Holds That Expert Testimony is Evidence, But Only An Immigration Judge Makes Factual Findings. When The Immigration Judge Makes A Factual Finding That Is Not Consistent With An Expert’s Opinion, It Is Important, As The Immigration Judge Did In This Case, To Explain The Reasons Behind The Factual Findings.
On December 17, 2020, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of an order of the Immigration Judge (IJ) denying Respondent’s applications for asylum, withholding of removal, and CAT relief, and ordering him removed. Respondent alleged 2 incidents amounting to a well-founded fear of persecution: 1) his car was set on fire outside his mother-in-law’s house (where he lived with this U.S. citizen spouse) and 2) about 3 months later, he drove to a veterinarian’s office with his wife’s grandaughter and 2 men parked next to him; one of them asked if Respondent knew him and when Respondent replied in the negative, pointed a gun at him, said, “You know who I am. You stole from me,” then hit Respondent with the gun several times and punched him; the man threatened to kill Respondent but, noticing the grandaughter, said he would kill him next time, although Respondent testified he did not know the man, or what he was talking about, and did not owe him any money.
A private investigator, who has previously worked in law enforcement for the U.S. government, testified on Respondent’s behalf and was accepted by the IJ as “an expert on general country conditions and cartel activity in Mexico”; he explained that Respondent’s stepdaughter had been arrested for attempting to smuggle drugs across the border, concluding that the man who provided her with heroin and methamphetamine also attacked Respondent, because their physical descriptions of the man matched. He theorized that the assault was related to the drugs confiscated from the step-daughter in that the assailant wanted to recover his lost money and stated that “drug smugglers will threaten the family members of a person who has lost drugs.” The expert also testified that the step-daughter told him that she was working for the DEA but did not verify her claim.
In his decision, the IJ found that Respondent is a member of a cognizable particular social group (PSG) composed of “family”, with a particular subgroup of “immediate family members of [Respondent’s step-daughter]” but found that the arson incident and the assault at the veterinarian’s office was not severe enough to constitute past persecution. Alternatively, the IJ concluded that, even if the 2 events established persecution, Respondent has not met his burden of establishing the required nexus to his PSG. The IJ also held the expert’s testimony to be “unhelpful and full of speculation,” as his discussion of the match between the assailant and the drug provider was speculative and based on general descriptions and gave it little weight. The IJ held that the witness’s testimony did not establish a nexus between the harm Respondent suffered and a protected ground, so Respondent had failed to prove past persecution. The IJ also reasoned that there had been no showing of a well-founded fear of future persecution as no one in his family had suffered persecution and Respondent did not even know the identities of those who had harassed him and threatened his family; this included the admission that Respondent did not know which cartel his assailant belonged to or if he belonged to a cartel at all. The IJ also denied withholding of removal on similar grounds and CAT relief because Respondent had not established that it is more likely than not that he would be tortured if removed to Mexico.
The BIA began its analysis by referencing the applicable standard of review, noting that it reviews findings of fact determined by the IJ, including credibility findings, under a “clearly erroneous” standard; questions of law, discretion, and judgment – and all other issues in appeals from IJ decisions – are reviewed de novo. Further, an IJ’s findings as to the motive of the persecutor constitute a factual issue reviewed for clear error. And “clear error” exists only when an IJ’s findings are illogical or implausible or “without support in inferences that may be drawn from the facts in the record.”
Next, the Board defined an expert witness as someone who is qualified as an expert by knowledge, skill, experience, training, or education, quoting the Federal Rules of Evidence (which are not binding in immigration proceedings); the decision still saw the Rules as providing “a useful guidepost” for IJs making factual findings. Therefore, IJs must consider whether evidence is probative and fundamentally fair when deciding whether to admit it. But, noted the BIA, the question of whether to rely on specific portions of the expert witness testimony for making a factual finding “is different”. Put another way, expert testimony is evidence only when an IJ makes factual findings and the question of what probative value or weight to give expert evidence “is a determination for the Immigration Judge to make as a factual finder.” Thus, even where the IJ finds an expert to be a credible witness (as here), it does not follow that the IJ must accept all the testimony and opinions as facts. Collaterally, if the IJ makes a factual finding inconsistent with an expert’s opinion (as here), it is important that he or she explain the reasons behind the factual findings.
In the context of an asylum application, the opinion reiterated that a respondent bears the burden of proof but the statute and regulations do not contemplate the IJ issuing an advisory opinion to a respondent during proceedings as to whether the expert evidence he has submitted is sufficient to meet the burden of proof. As such, the IJ’s conduct at the hearing and his consideration of the expert testimony did not violate the statute, regulations, or due process. The BIA stated that the IJ denied Respondent’s asylum application because he did not meet his burden of proof regarding nexus; Respondent’s claim was based on membership in a PSG consisting of the family or immediate family members of his step-daughter. However, even if he articulated a viable PSG, he also bore the burden of proving that he was persecuted, or fears persecution, “on account of” that membership in a PSG.
The Board concluded that Respondent had not established a nexus between the harm he suffered and a protected ground; no one saw who set his family’s car on fire and Respondent did not know who did it or why. As to the assault in the veterinarian’s parking lot, he did not know the man or why he attacked him. Therefore, held the BIA, Respondent’s testimony regarding these incidents did not establish clear error by the IJ regarding the assailant’s motive. The “primary flaw” in Respondent’s theory of the case that the attacks were retribution for his step – daughter’s drug delivery failure, was its inconsistency with his interaction with the assailant; the man’s insistence that Respondent stole from him “does not support a connection between this event and his step-daughter’s drug delivery failure.” Although the expert tied Respondent’s assault to his step-daughter’s loss of the drugs, the IJ “provided ample reasons not to make this connection and his factual findings are well supported.”
The Board next dismissed Respondent’s argument as to his withholding claim because it was raised for the first time at oral argument and not discussed in his opening brief and his supplemental brief expressly declined to address the issue – it was therefore considered waived. As to CAT relief, the BIA agreed with the IJ that Respondent had not met his burden of proving he is more likely than not to be tortured by or with the consent or acquiescence of a public official or a person acting in an official capacity in Mexico. The appeal was thus dismissed. Matter of M-A-M-Z-, 28 I&N Dec. 173 (BIA 2020).