20- 3230 Pomavilla

- Zaruma v. Garland UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “ SUMMARY ORDER ” ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2 nd day of April, two thousand twenty -four. PRESENT: MYRNA PÉREZ, ALISON J. NATHAN, SARAH A. L. MERRIAM, Circuit Judges.

_____________________________________ Rosa Elvira Pomavilla-Zaruma Petitioner,

v. No. 20-3230 Merrick B. Garland, United States Attorney General Respondent
.

_____________________________________2 FOR PETITIONER: Reuben S. Kerben, Esq. , Kerben Law Firm, P.C., Kew Gardens, NY

. FOR RESPONDENT: Liza S. Murcia (Brian M. Boynton, Acting Assistant Attorney General, Anthony C. Payne, Assistant Director, Melissa Neiman

- Kelting, Assistant Director, W. Manning Evans, Senior Litigation Counsel, on the brief s ), Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC. UPON DUE CONSIDERATION of this petition for review of a Boa r d of Immigration Appeals (BIA) decision and petition for rehearing , IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the petition for rehearing is GRANTED, our prior decision is VACATED , and we REMAND the case for further proceedings consistent with this order. Petitioner Rosa Elvira Pomavilla

- Zaruma, a native and citizen of Ecuador, seeks review of an August 24, 2020 decision of the BIA affirming a n August 29,
2018 decision of an Immigration Judge (IJ) denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). In re Rosa Elvira Pomavilla -Zaruma, No. A 206 506 589 (B.I.A. Aug. 24, 2020), aff’g3 No. A 206 506 589 (Immig. Ct. N.Y. City Aug. 29, 2018). After we issued our opinion i n this matter, Pomavilla- Zaruma v. Garland , 81 F.4th 145 (2d Cir. 2023), the government petitioned for rehearing. In that petition, the government argued that our application of circuit precedent impermissibly imposed judge -made procedural rules on the agency. It also argued for the first time that this case should be remanded to the BIA because the agency failed to apply its own precedent. As explained below, the government misreads our earlier opinion and we reject the contention that our C ircuit’s precedent imposes additional procedural rules on the agency. However, we agree that the agency overlooked its own p recedent in this case and agree with the government that remand is warranted for the agency to apply its precedent properly in the first instance. We therefore grant the government’s petition on that basis, vacate our previous judgment, and issue the following order in this case. We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal , to which we refer only as necessary to explain our decision

. I. Background In May 2013, Pomavilla

- Zaruma attempted to enter the United States without valid entry documents. Border patrol agents apprehended her and, by4 her account, “started hitting [her] on the back with.

. . something they carry on their belts.” C ertified A dministrative R ecord (CAR) at 145. The following day, border patrol agents interviewed her. When asked the “purpose for [her] entry into the United States,” she answered “[t]o reside and seek employment and continue my education.” Id . at 135. When asked whether she feared persecution or torture if she was sent back to Ecuador, Pomavilla

- Zaruma answered “[n]o.” Id. at 136. She was placed in removal proceedings, conceded removability, and timely applied for asylum, withholding of removal, and relief under the Convention Against Torture. The following year, i n 2014, Pomavilla

- Zaruma completed a credible fear
interview where she alleged that a man in her home country, whom she identified by name, began pursuing her and trying to inappropriately touch her when she was a child, and that he began raping her when she was a teenager . She further alleged that the man had threatened her mother, that police would not protect her because she was indigenous, and that she could not relocate because indigenous people were not permitted to move freely in Ecuador. The asylum officer asked Pom a villa

- Zaruma whether she had indicated in her border interview that she was not afraid to return to Ecuador. She answered5 that she “couldn’t really understand” the border patrol officer because “[m]ost of it was in English.” C AR at 29. She also told the asylum officer about her experience entering the United States the day before the border interview, explaining that she was “very scared” because “one officer had hit [her].” Id. The asylum officer then found Pomavilla

- Zaruma to have a credible fear of persecution

. In 2018, Pom a villa

- Zaruma testified before an IJ and echoed her claims from her credible fear interview. The government cross

- examined Pomavilla

- Zaruma about the border interview, specifically questioning why she had stated that she came to the United States for employment and education. She explained : “Well, to be honest with you, that day I was very nervous. I couldn’t really understand much, and they were only talking in English.” Id . at 12 3. T he IJ expressed skepticism of that explanation, and Poma villa -Zaruma’s counsel responded that “she is somewhat confused and was confused at the time of the [border] interview.” Id

. at 129. The IJ denied all relief because he found Pomavilla

- Zaruma to be

non credible on two grounds. First, the responses she gave during the border interview about coming to the United States for employment and education and6 not fearing persecution were inconsistent with her later account of fleeing to the United States to escape persecution. Second, her testimony that the interview was conducted in English was “simply unbelievable” because the record of the interview stated that it was conducted in Spanish and because border interviews are generally conducted in the interviewee’s native language. CAR at 88. Pomavilla

- Zaruma appealed to the BIA , which affirmed the IJ’s credibility decision on similar grounds in 2020. In addition to challenging the adverse credibility finding, Pomavilla

- Zaruma claimed for the first time that the border interview record was improperly admitted into evidence at the IJ hearing. The BIA rejected that argument as waived and also rejected it on the merits. Pomavilla

- Zaruma timely petitioned this Court for review. On August 30, 2023, we issued an opinion , Pomavilla- Zaruma v. Garland , 81 F.4th 145 (2d Cir. 2023) , granting Pomavilla

- Zaruma’s petition and remanding to the BIA. We held that the BIA correctly determined that Pomavilla -Zaruma waived any challenge to the admission of the border interview record . However,

we held that the agency had failed to adequately consider the reliability of the border interview before relying on it to find her not c redible , applying Ramsameachire v. Ashcroft , 357 F.3d 169, 179 -82 (2 d Cir. 2004) , which sets out certain7 factors for evaluating the reliability of such interviews. In doing so, we clarified the law of our Circuit, holding that an IJ is required to consider the Ramsameachire factors if the record indicates that the factors are relevant

. Because we could not confidently predict that the agency would reach the same conclusion as to Pomavilla -Zaruma’s credibility absent its error under Ramsameachire and its
progeny , we remanded. The government then filed its petition for rehearing , arguing that our application of Ramsameachire impermissibly imposed judge

- made procedural rules on the agency and overlooked intervening BIA precedent on the use of border interviews in credibility determinations in light of statutory amendments postdating Ramsameachire

. The government noted

— for the first time

— that the agency in this case never applied that BIA precedent and requested a remand for the BIA to do so. As explained below, we are by no means persuaded that our application of Ramsameachire would impose a judge

- made procedural rule . But , based on the government’s new argument, we do agree that the agency should apply its own precedent regarding the reliability of border interviews in the first instance and we remand for that purpose

.8 II. Border Interviews and Credibility Determinations After Matter ofJ-C-H-FAlthough, as explained below, we will remand to the agency for failing to address its own precedent, we reject t he Government’s argument that our Circuit’s precedents regarding the agency’s obligations when relying on border interviews in making credibility determinations have been abrogated. We maintain that the agency must consider the Ramsameachire factors when they are relevant in a given

case . Providing this clarification requires some background on credibility determinations, our Circuit’s precedents, and the Real ID Act of 2005. On a petition for review of a BIA decision, w e review the agency’s factual findings, including adverse credibility findings, for substantial evidence, meaning we require “that they be supported by reasonable, substantial and probative evidence in the record when considered as a whole.” Hong Fei Gao v. Sessions , 891 F.3d 67, 76 (2d Cir. 2018) (cleaned up). Although we treat factual findings as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B), we do not “defer to unreasoned rulings, or those based on legal error, faulty analysis, or misreadings of the record,” Dong Gao v. Bd. of Immigr. Appeals, 482 F.3d 122, 127 (2d Cir. 2007) (quotation marks omitted ).9 Prior to the enactment of the Real ID Act of 2005, our Ci rcuit developed case law to guide IJs ’ consideration of statements made in border interviews when evaluating asylum applicants’ credibility

. See Ramsameachire v. Ashcroft , 357 F.3d 169 (2d Cir. 2004). We recognized that there are inherent limitations in asylum applicants’ willingness and ability to express their fear of p er secution during border interviews. Persons fleeing state

- sponsored abuse in their home countries may travel weeks to seek asylum in the United States, arriving travel

- worn, apprehensive of governmental authorities, and lack ing English fluency, access to legal counsel, or knowledge of our immigration laws. It is therefore unsurprising that some asylum seekers feel intimidated, reluctant, or confused during the interviews with border patrol officers that occur immediately aft er their arrival. Moreover, because a border interview is not an interview for asylum, the interviewing officers might not pose questions aimed at developing the details of an asylum claim or record a verbatim transcript of the interviewee ’ s responses. See id. at 179

- 80 ( first citing Balasubramanrim v. I.N.S. , 143 F.3d 157, 162– 63 (3d Cir. 1998), and then citing Senathirajah v. I.N.S. , 157 F.3d 210, 218–20 (3d Cir. 1998)). For all these reasons, we held in Ramsameachire that when the inconsistencies underlying an adverse credibility finding arise from an applicant’s statements in10 a border interview, the IJ “must closely examine” the border interview to ensure it is sufficiently reliable “to merit consideration.” 357 F.3d at 179

. Nor are we alone in this regard . Other circuits have similarly cautioned IJ s against uncritical reliance on statements made in border interviews, given the particular circumstances of those interviews. See, e.g. , Qing Hua Lin v. Holder, 736 F.3d 343 , 353 (4th Cir. 2013); Lin Lin Tang v. United States Atty. Gen. , 578 F.3d 1270, 1278 –80 (11th Cir. 2009); Yan Xi a Zhu v. Mukasey , 537 F.3d 1034, 1040

– 41 (9th Cir. 2008); Moab v. Gonzales , 500 F.3d 656, 660–61 (7th Cir. 2007). Recognizing the inherent problems in relying on border interviews , we articulated four non

- exhaustive factors in Ramsameachire that “provide the analytical framework for assessing the reliability” of such interviews

. 357 F.3d at 180. A border interview record is “inherently less reliable” if (1) the record “merely summarizes or paraphrases the [noncitizen ] ’s statements” rather than includ ing “a verbatim account or transcript,” (2) “the questions asked are not designed to elicit the details of an asylum claim, or the

. . . officer fails to ask follow

up questions that would aid the [noncitizen] in developing his or her account,” (3) “the [noncitizen] appears to have been reluctant to reveal information to [immigration] officials because of prior interrogation sessions or other coercive11 experiences in his or her home country,” or (4) “ the [noncitizen ] ’s answers to the questions posed suggest that the [noncitizen] did not understand English or the translations provided by the interpreter.” Id. (cleaned up). We stated that “[i]n all cases,” “[t]hese aspects of the interview must be deemed reliable before the [agency] uses the interview to assess the [applicant’s] credibility.” Id. (emphasis added). After Ramsameachire , however, our Court’s subsequent opinions left some uncertainty around whether consideration of the Ramsameachire factors is actually required of IJ s or simply best practice. See Latif i v. Gonzales , 430 F.3d 103, 105 (2d Cir. 2005); Yun -Z ui Guan v. Gonzales , 432 F.3d 391, 396 (2d Cir. 2005). Soon after our decision in Ramsameachire , Congress enacted the Real ID Act of 2005. See Div. B of Pub. L. No. 109 -13 , 119 Stat. 302 (R eal ID Act). The Real ID Act codified how IJs are to conduct their credibility determination s . As relevant here, the Real ID Act broadly allows IJs to “base a credibility determination on .

. . the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made) ,” while making clear that they should “[c]onsider[] the totality of the circumstances, and all relevant12 factors[.]” 8 U.S.C. § 1158(b)(1)(B)(iii). Seeking to reconcile our case law, we held in the prior opinion that “ an IJ is required to consider the Ramsameachire factors before relying on a border interview for an adverse credibility determination if the record indicates the factors may be relevant. ” Pomavilla-Zaruma , 81 F.4th at 151 (emphasis in original)

. In its petition for rehearing, the government argue s that we failed to consider intervening authority from the BIA : Matter of J-C-H-F- , 27 I&N Dec. 211 (BIA 2018) , a published decision regarding how IJs are to evaluate and use border interviews in making credibility determinations

. The government also argues that our application of Ramsameachire imposed a judge

- made procedural rule on the agency , in violation of Garland v. Ming Dai , 593 U.S. 357 , 365 (2021), and it further contends that Ming Dai has abrogated any application of the Ramsameachire factors. We disagree. First, our understanding of an IJ’s obligations under Ramsameachire is entirely consistent with Matter of J -C-H-F-

. In that opinion, the BIA interpreted Ramsameachire i n light of Congress’s enactment of the Real ID Act. It interpreted the Real ID Act to allow consideration of “statements made in border and airport interviews, as long as the [IJ] takes into account any issues regarding the13 circumstances under which they were made.” 27 I&N Dec. at 213. Noting that our Court had adopted a set of factors in Ramsameachire for the IJ to asses s in determining whether a border interview was reliable, the BIA agreed that “the factors listed in Ramsameachire are proper considerations for assessing the reliability of an interview .” Id. at 215. However, the BIA clarified that an IJ

“ should assess the accuracy and reliability of the interview based on the totality of the circumstances, rather than relying on any one factor among a list or mandated set of inquiries.” Id

. In reaching its conclusion, the BIA cited favorably to a First Circuit decision that declined to adopt Ramsameachire

. See id. (citing Ye v. Lynch , 845 F.3d 38, 44 (1st Cir. 2017))

. The First Circuit’s decision rejected the idea that IJs must always “undertake an inquiry into the reliability of initial interviews with Border Patrol agents using specifically enumerated factors.” Ye , 845 F.3d at 44. And the BIA agreed with the First Circuit insofar as it “declined to employ a checklist” or impose on IJs “a list or mandated set of inquiries.” 27 I&N Dec. at 215. However, that is beside the point ; we do not read Ramsameachire to impose this type of mandatory checklist

. Contrary to the government’s argument , the BIA’s analysis in Matter of J -C-H-F- , drawing on the reasoning of the First Circuit, does14 not entail a repudiation of our Circuit’s case law. Rather, t he qualified reading of Ramsameachire this panel adopted is consistent with Matter of J-C-H-F- , which itself acknowledges the continued relevance of the Ramsameachire factors

. As stated, w e do not suggest that there is a mandatory check list of inquiries for the evaluation of border interviews in all

cases . I n requiring consideration of the Ramsameachire factors only when there is a basis for their relevance in the record , we would simply hold the agency to its statutory obligation to “ [c]onsider[] . . . all relevant factors” and “consider[] the circumstances under which [border interview] statements were made.” 8 U.S.C. § 1158(b)(1)(B)(iii). In other words, our understanding of the continued import of Ramsameachire derives from statutory text . We agree, in short, with the Eleventh Circuit that “when an IJ ‘consider[s] the circumstances ’ of an airport interview, the IJ should keep in mind that an airport interview is not an application for asylum.” Lin Lin Tang , 578 F.3d at 1279 ( quoting 8 U.S.C. § 1158(b)(1)(B)(iii) and subsequently citing Ramsameachire , 357 F.3d at 180)

. And we add that consideration of “all relevant factors,” 8 U.S.C. § 1158(b)(1)(B)(iii), necessarily includes consideration of the factors unique to border interviews that we identified in Ramsameachire

— when15 they are relevant in a given case. The c ontinued application of Ramsameachire thus does not impose any “additional judge

- made requirements on agencies that Congres s has not prescribe d[.]” Ming Dai , 593 U.S. at 365 (citing Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc. , 435 U.S. 519, 524 (1978)). On the contrary, i t merely

ensure s that the agency is abiding by the governing statute and the law imposed by Congress, which accords with our limited role in reviewing BIA decisions. Consistent with Matter of J-C-H-F- and the REAL ID Act , when the BIA applies its precedent upon remand and evaluates whether it should rely on statements made in Pomavilla

- Zaruma’s border interview to evaluate her credibility, it should consider “all relevant factors” and “the circumstances under which the statements were made.” 8 U.S.C. § 1158(b)(1)(B)(iii). Ramsameachire
sets out what some of those relevant factors and circumstances are for border
interviews. We would thus understand failure to consider those factors , if they are relevant based on the record , to be error

— under the BIA’s precedent, under our precedent, and under the Real ID Act

. III. The BIA’s Failure to Address Its Precedent Although we believe the BIA erred when it failed to consider certain16 Ramsameachire factors that were relevant in this case , we remand on a narrower ground. We have consistently held that the agency is required to follow its own precedent, and we have remanded when it has failed to do so. See Paucar v. Garland , 84 F.4th 71, 87 (2d Cir. 2023); Ojo v. Garland , 25 F.4th 152, 168 (2d Cir. 2022). Here, as the government concedes , the agency in this case failed to address or apply Matter of J-C-H-F- , which was directly relevant to its consideration of Pomavilla

- Zaruma’s interview and credibility. We therefore grant the government’s request to remand for the agency to apply its own precedential opinion in considering Pomavilla

- Zaruma’s credibility. See Ojo , 25 F.4th at 168 (“[T]he agency’s failure to follow its own precedent .

. . requires remand[.]”); cf. Singh v. U.S. Dep’t of Justice , 461 F.3d 290, 296 (2d Cir. 2006) (“[A]n administrative agency must adhere to its own regulations.”) (citing United States ex rel. Accardi v. Shaughnessy , 347 U.S. 260 (1954)); 8 C.F.R. § 1003.1(g). IV. Admission of the Border Interview Record Finally, we again reject Pomavilla

- Zaruma’s argument that her border interview record was improperly admitted into evidence at her IJ hearing. When, as in this case, the BIA declines to consider an issue because it is waived, “this Court’s review is limited to whether the BIA erred in deeming the argument17 waived.” Prabhudial v. Holder , 780 F.3d 553, 555

– 56 (2d Cir. 2015). “[T]he BIA may refuse to consider an issue that could have been, but was not, raised before an IJ,” id. at 555, and here, the BIA was correct as a factual matter that neither Pomavilla

- Zaruma nor her counsel objected to the border interview record’s admission. Therefore, the BIA did not err in deeming Pomavilla -Zaruma’s evidentiary argument waived. Moreover, Pomav illa

- Zaruma did not address the BIA’s waiver finding in her petition to this Court and thereby abandoned any challenge to it. See Yueqing Zhang v. Gonzales , 426 F.3d 540, 545 n.7 (2d Cir. 2005).
* * * For the foregoing reasons, the government’s petition for rehearing is GRANTED, our prior decision is VACATED , and we REMAND the case for further proceedings consistent with this order. This panel retains jurisdiction to rule, if necessary, on the issues raised in a petition for review after the disposition of the remand. See Shi Liang Lin v. DOJ , 416 F.3d 184, 192 (2d Cir. 2005) (retaining jurisdiction to decide issues on appeal following remand to the BIA); cf. United States v. Jacobson , 15 F.3d 19, 21

– 22 (2d Cir. 1994) (retaining jurisdiction while remanding to the district court for supplementation of the record). Pomavilla

Zaruma may return the case to this Court by notifying the Clerk of the Court18 within thirty days of entry of a final BIA order on remand. Such notification will not require the filing of a new notice of appeal. If notification occurs, the matter will be referred automatically to this panel for disposition. FOR THE COURT: Catherine O ’Hagan Wolfe, Clerk of Court