Rosales Justo v. Sessions

United States Court of Appeals For the First Circuit No. 17-1457 JAVIER ROSALES JUSTO, Petitioner, v. JEFFERSON B. SESSIONS III, Attorney General of the United States, Respondent. PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS Before Torruella, Lipez, and Kayatta, Circuit Judges. Talia Barrales, with whom Law Offices of Talia Barrales was on brief, for petitioner. Rebekah Nahas, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom Chad A. Readler, Acting Assistant Attorney General, Civil Division, and Briena L. Strippoli, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent. July 16, 2018 LIPEZ, Circuit Judge. Petitioner Javier Rosales Justo ("Rosales"), a citizen of Mexico, claims that the Board of Immigration Appeals ("BIA") erred when it reversed an immigration judge's order granting him asylum. The immigration judge ("IJ") concluded that Rosales met his burden of proving he was entitled to asylum based, inter alia, on a finding that the police in Mexico would be unable to protect him from members of organized crime who had murdered his son and continued to target him and the rest of his nuclear family. The BIA rejected that finding, concluding that it was clearly erroneous. We agree with Rosales that the BIA's conclusion that the IJ's finding was clearly erroneous is unfounded because the BIA committed several errors in its review of the IJ's decision. Most importantly, the BIA failed to examine separately the evidence of the government's willingness to protect Rosales from persecution and the evidence of its ability to do so. Instead, the Board cited evidence only of the willingness of local authorities to promptly investigate the murder of Rosales's son as support for its conclusion that the IJ's finding of inability was clearly erroneous. Because of the BIA's flawed analysis of the IJ's decision, we grant Rosales's petition and remand the case to the BIA for reconsideration of Rosales's eligibility for asylum. - 2 - I. A. Factual Background Rosales applied for admission to the United States immediately upon arriving with his wife and children at the border crossing in San Ysidro, California on May 9, 2016. He was detained, transferred to a correctional facility in Plymouth, Massachusetts, and subsequently served with a notice to appear charging him with removability because he lacked a valid entry document. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). Rosales conceded removability, but requested asylum pursuant to section 208 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1158, and cancellation of removal pursuant to 8 U.S.C. § 1231(b)(3). A hearing before an IJ was held on October 21, 2016. Rosales and his wife both testified at the hearing, and Rosales also submitted extensive documentary evidence, including declarations from himself and his family members, reports from the U.S. Department of State and international non-governmental organizations regarding country conditions in Mexico, and documents and reports from the police investigation into his son's murder. In reaching his decision, the IJ considered "[a]ll admitted evidence . . . in ...

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