PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 20-1705

_____________

JORGE LUIS VALAREZO-TIRADO,

 Petitioner

v.

ATTORNEY GENERAL OF THE

UNITED STATES OF AMERICA

________________

On Petition for Review of a Final Order of

the Immigration Court

(Agency No. A208-449-401)

Immigration Judge: Pallavi S. Shirole

________________

Argued on March 10, 2021

Before: SMITH, Chief Judge, McKEE and AMBRO, Circuit 

Judges

(Opinion filed: July 17, 2021)



Judge Smith was Chief Judge at the time this appeal was 

argued. Judge Smith completed his term as Chief Judge and 

assumed senior status on December 4, 2021.
2

Charles W. Stotter, Esquire

Carlton Fields, P.A.

180 Park Avenue, Suite 106

Florham Park, New Jersey 07932

Robert D. Helfand, Esquire (Argued)

Office of the Connecticut State Comptroller

Retirement Services Division

165 Capitol Avenue

Hartford, CT 06103

Counsel for Petitioner

Jeffrey Bossert Clark, Esquire

Anthony C. Payne, Esquire

Lance J. Lolley, Esquire (Argued)

Office of Immigration Litigation

Civil Division

U.S. Department of Justice

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

Counsel for Respondent

________________

OPINION OF THE COURT

________________

McKEE, Circuit Judge

Jorge Luis Valarezo-Tirado petitions this Court for 

review of an Immigration Judge’s reinstatement of his prior 

order of removal. The IJ affirmed a Department of Homeland 

Security (DHS) asylum officer’s determination that ValarezoTirado did not have a reasonable fear of torture as required 

for relief under the Convention Against Torture (CAT) or a 

reasonable fear of persecution as required for asylum and

withholding of removal. Valarezo-Tirado appeals the IJ’s 

denial of his CAT claim. For the reasons that follow, we will 

grant the petition for review and vacate the IJ’s decision and 

order and remand for further proceedings.
3

I.

A. Factual Background and Procedural History

Jorge Luis Valarezo-Tirado, an Ecuadorian citizen, 

entered the United States illegally in 2017. He was 

subsequently detained by DHS, and in January 2020, DHS

reinstated a prior order of his removal.

1 However, before he 

was actually removed, DHS conducted a reasonable fear 

interview in front of an asylum officer because ValarezoTirado claimed a fear of persecution if he were returned to 

Ecuador. That interview began on February 20, 2020. At the 

start of the interview, Valarezo-Tirado was twice informed of 

his right to postpone the interview for up to 48 hours to 

procure an attorney. He was also provided with a list of pro 

bono and low-cost attorneys who may be willing to represent 

him. However, both times he was asked, he declined, and 

decided to proceed with the interview that day without an 

attorney.

Valarezo-Tirado told the asylum officer that in 2016

he had a dispute with a neighbor, Enrique Villa, in his 

hometown of Pedro Vicente Maldonado, Ecuador. ValarezoTirado sold Villa a load of lumber. When Valarezo-Tirado 

went to collect payment, Villa refused to pay. ValarezoTirado then went to the local police to file a report about 

Villa’s refusal, but the police allegedly told Valarezo-Tirado 

not to file a police report. According to Valarezo-Tirado, 

“they told me not to do anything, that he will pay me; that I 

should leave it alon[e] [and] that he will pay me.”

2 Officers

also told Valarezo-Tirado that Villa was “involved in some 

dark business.”

3 Villa was allegedly known in the community 

to have ties to drug trafficking. 

1 DHS had previously detained Valarezo-Tirado and issued a 

Form I-860 Determination of Inadmissibility and Order of 

Removal on September 6, 2015. DHS removed ValarezoTirado to Ecuador on October 23, 2015. The events giving 

rise to this appeal occurred after Valarezo-Tirado’s removal 

in 2015.

2 App. 26.

3

Id.
4

Valarezo-Tirado told the asylum officer that, based on 

the inaction of the local police, he believed Villa “ha[d] some 

kind of friendship with the police and the police would have 

told [Villa] that I came to file a report against him.”4

Accordingly, Valarezo-Tirado did not file a police report. 

However, as Valarezo-Tirado later told the IJ, he returned to 

Villa’s house to demand his money a second time. Rather 

than paying Valarezo-Tirado, Villa threatened him with a 

pistol: “he told me to leave things alone or something will 

happen to my family or me.”5

Fearing for his and his family’s safety, ValarezoTirado fled to the United States with his family. ValarezoTirado told the asylum officer that since he fled his 

hometown, he “heard [Villa] was in jail one time, that he had 

[a] problem with the police.”6 Valarezo-Tirado clarified that 

he believed that the state or provincial police had detained 

Villa. He told the asylum interviewer that the state and 

provincial police were separate forces than the local police 

who previously discouraged him from filing a police report.

The DHS asylum officer found that Valarezo-Tirado

was “credible,” meaning that his testimony was “consistent, 

detailed, and plausible,”7 but that he did not establish a 

reasonable fear of persecution or torture if removed to 

Ecuador. As to past torture, the asylum officer concluded 

“[t]he limited harm experienced by the applicant (verbal 

threats of unspecified harm) does not rise to the level of 

severe physical or mental pain required to constitute torture.”

8

And “[t]he incident did not cause the applicant any physical 

harm and there is no indication that the applicant experienced 

any prolonged mental suffering from the experience.”

9

As to the threat of future torture, the asylum officer 

found that Valarezo-Tirado “failed to provide specific and 

persuasive facts that a public official such as a corrupt police 

4

Id.

5

Id. at 24.

6

Id. at 25.

7

Id. at 29.

8

Id. at 31.

9

Id.
5

officer would specifically intend to inflict on him severe 

harm.”

10 The officer also concluded that Valarezo-Tirado 

“failed to provide specific and persuasive evidence to 

establish a reasonable possibility that a public official would 

consent or acquiesce to his future harm by Mr. Villa.”

11

Valarezo-Tirado appealed the DHS asylum officer’s 

negative reasonable fear determination to an IJ. At the 

beginning of the hearing before the IJ, the IJ had the 

following exchange with Valarezo-Tirado about his right to 

counsel:

IJ: You do have the right to be represented in this 

hearing by an attorney but at no expense to the 

Government. You previously received a packet 

that listed your rights in these proceeding[s]. 

You also received a list of attorneys and 

organizations that might be willing to represent 

you at little or no cost. Do you remember getting 

that list?

Valarezo-Tirado: Yes.

IJ: Okay. You don’t have an attorney here with 

you today but because these are expedited 

proceedings, I can’t give you any more time to 

find an attorney. All right. Sir, have you 

understood everything that I’ve explained to you 

today?

Valarezo-Tirado: Yes.12

The IJ then summarized Valarezo-Tirado’s prior 

testimony from the reasonable fear interview and allowed him

to expand on why he felt he could not report Villa to the 

police. Valarezo-Tirado stated that he was afraid that Villa 

had friends in the police department, and therefore did not file 

a police report. The IJ concluded that she understood that 

Valarezo-Tirado was afraid to return, “but the problem is that 

10 Id.

11 Id.

12 Id. at 6–7.
6

in order . . . for you to be able to seek relief in this country 

you have to fear persecution on account of a protected

ground.”13 She found “[t]he situation that you are facing 

seems to be more of a personal matter. Because of that, sir, I 

do not find that you’ve established a reasonable possibility 

that you would be persecuted on account of one of these 

protected grounds.”

14 The IJ also stated that she “concur[red] 

in [DHS’] reasonable fear determination.”15 Her written 

opinion stated, in its entirety: “R not targeted on account of 

protected ground. Government is willing to assist.”16

Valarezo-Tirado now petitions for review.

17

II. 

Valarezo-Tirado raises the following three arguments 

on appeal: (i) the IJ’s conclusion that he did not have a 

reasonable fear of torture was not supported by reasonable, 

substantial, and probative evidence on the record as a whole; 

(ii) the IJ violated his due process rights by failing to 

“develop his testimony” as to his fear of torture if returned;

and (iii) the IJ violated his right to counsel.

13 Id. at 11.

14 Id.

15 Id.

16 Id. at 1.

17 Because Valarezo-Tirado was subject to a reinstated order 

of removal, DHS had exclusive jurisdiction to consider 

Valarezo-Tirado’s reasonable fear claim under 8 C.F.R. § 

208.31(a) in the first instance. The IJ had jurisdiction to 

review DHS’ negative reasonable fear determination under 8 

C.F.R. §§ 208.31(a), (g). Where an “IJ concurs with the 

asylum officer’s decision that the applicant did not establish a 

reasonable fear of persecution or torture, . . . ‘[n]o appeal 

shall lie from the [IJ]’s decision.’” Bonilla v. Sessions, 891 

F.3d 87, 90 n.4 (3d Cir. 2018) (quoting 8 C.F.R. § 

208.31(g)(1)). An IJ’s decision concurring with an asylum 

officer’s negative reasonable fear determination is, therefore,

a final order of removal. Id. We have jurisdiction to review 

final orders of removal under 8 U.S.C. § 1252. See also id.
7

A.

In order to obtain relief under the CAT, ValarezoTirado must show “that it is more likely than not that he 

would be tortured upon return to his country”18 and that the 

torture would occur “by, or at the instigation of, or with the 

consent or acquiescence of, a public official . . . or other 

person acting in an official capacity.”19 “Acquiescence of a 

public official requires that the public official, prior to the 

activity constituting torture, have awareness of such activity 

and thereafter breach his or her legal responsibility to 

intervene to prevent such activity.”20 It is the IJ’s 

responsibility in the first instance to decide if ValarezoTirado has demonstrated eligibility for CAT relief.21 We 

review an IJ’s findings of fact under an “‘extraordinarily 

deferential standard’ [and] we uphold the IJ’s findings if they 

are ‘supported by reasonable, substantial, and probative 

evidence on the record considered as a whole.’”

22

Given the IJ’s less-than-terse explanation of her denial 

of CAT relief, it becomes necessary to again stress that “the 

availability of judicial review . . . necessarily contemplates

something for us to review.”

23 This means that an IJ (or the 

BIA) must explain a decision “with such clarity as to be 

understandable.”24 And “[a]lthough we ask, in evaluating 

whether an agency determination is supported by substantial 

evidence, ‘whether a reasonable fact finder could make such a 

determination based upon the administrative record,’ we will 

not supply the basis for its decision where appropriate 

18 Saravia v. Att’y Gen., 905 F.3d 729, 735 (3d Cir. 2018)

(internal citation omitted).

19 8 C.F.R. § 1208.18(a)(1).

20 Id. § 1208.18(a)(7).

21 8 U.S.C. § 1231(b)(3)(C) (The trier of fact, the IJ, “shall 

determine whether the [noncitizen] has sustained the 

[noncitizen’s] burden of proof.”).

22 Romero v. Att’y Gen., 972 F.3d 334, 340 (3d Cir. 2020)

(quoting Garcia v. Att’y Gen., 665 F.3d 496, 502 (3d Cir. 

2011)).

23 Abdulai v. Ashcroft, 239 F.3d 542, 555 (3d Cir. 2001).

24 Wang v. Att’y Gen., 423 F.3d 260, 270 (3d Cir. 2005)

(quoting SEC v. Chenery Corp., 332 U.S. 194, 241 (1947)).
8

reasons are not set forth by the [IJ] itself.”

25 Given the bullet 

point-like checklist that purported to explain the IJ’s decision 

here, we stress that, “[w]here the administrative decision fails 

to consider or mention evidence that is on its face relevant 

and persuasive, the proper course is to remand for further 

consideration by the IJ.”26

Valarezo-Tirado alleges that the IJ’s conclusion that he

does not have a reasonable fear of torture if returned to 

Ecuador is not supported by substantial evidence. We agree. 

The entirety of the IJ’s written decision rejecting his claim 

states: “R not targeted on account of protected ground. 

Government is willing to assist.”27 With nothing more than 

that bare conclusion—“[g]overnment is willing to assist”—

we have no way of determining what evidence, if any, the IJ 

relied upon. “An IJ must support her factual determinations 

with ‘specific, cogent’ reasons such that her conclusions 

‘flow in a reasoned way from the evidence of record.’”28

Failure to provide such support “does not pass muster under 

the substantial evidence rubric.”29

Valarezo-Tirado argues not only that there is no 

evidence in the record to support the IJ’s conclusion; he 

claims that the record evidence supports the opposite

conclusion. He believes this record supports the conclusion 

that the police were unwilling or unable to assist. He points to 

his testimony before the asylum officer and before the IJ. He 

testified that the police told him not to file an official police 

report because Villa was into “some dark business.”30 He told 

the IJ: “when I went to report [Villa], they, the police [told]

me, don’t, don’t do it.”31 The government, on the other hand, 

points to Valarezo-Tirado’s testimony before the asylum 

officer in which he stated that, at one point after Valarezo25 Id. at 271 (citing Chenery Corp., 332 U.S. at 249) 

(emphasis added).

26 Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir. 2007).

27 App. 1.

28 Toure v. Att’y Gen., 443 F.3d 310, 316 (3d Cir. 2006)

(citing Dia v. Ashcroft, 353 F.3d 228, 250 (3d Cir. 2003)).

29 Id. (citing Dia, 353 F.3d at 254).

30 App. 9.

31 Id.
9

Tirado fled his hometown, he heard that the provincial police 

had detained Villa. 

Therein lies the problem. The IJ’s failure to provide a 

citation or reference to anything in the record leaves us 

guessing at the evidence she relied upon and gives us 

“[nothing] to review.”

32 “[W]e cannot give meaningful review 

to a decision in which [an IJ] does not explain how it came to 

its conclusion.”33 Valarezo-Tirado is correct when he argues 

that although the government “suggests ways in which 

[Valarezo-Tirado’s] testimony might have supported [the IJ’s]

conclusion,”34 the government can only guess whether the IJ 

even considered the evidence of Villa’s alleged arrest by 

provincial police. We fare no better. It “would be improper 

for us to speculate as to whether” the IJ considered such 

evidence, or how it factored into her conclusion.35 The basis 

for the IJ’s decision “can and should be addressed explicitly 

by the [IJ] upon remand.”

36

We have previously granted a petition for review in 

which the alleged basis for the BIA’s denial of relief was that 

“the evidence is insufficient” and “the arguments made by the 

[government] on appeal . . . are persua[sive]” because we 

could not “perform meaningful review of [such an] order.”37

Here, we have even less to work with. 

We realize, of course, that the IJ and BIA have a 

tremendous caseload and very crowded dockets. We have

taken pains to note that the large number of cases on IJs’ and 

the BIA’s dockets “impose[] practical limitations on the 

length of the [IJ’s and] BIA’s written opinions.”

38 However, 

we will not permit crowded dockets or a backlog of cases to 

excuse an IJ or the BIA from providing a meaningful 

explanation of why someone has been denied relief under the 

asylum laws or the CAT. The most fundamental notion of due 

32 Abdulai, 239 F.3d at 555.

33 Awolesi v. Ashcroft, 341 F.3d 227, 229 (3d Cir. 2003).

34 Pet’r’s Reply Br. at 15–16.

35 Voci v. Gonzales, 409 F.3d 607, 617 (3d Cir. 2005).

36 Id.

37 Awolesi, 341 F.3d at 229.

38 Voci, 409 F.3d at 613 n.3.
10

process must include an opportunity for meaningful judicial 

review. We reiterate that “judicial review necessarily requires 

something to review and, if the agency provides only its result 

without an explanation of the underlying fact finding and 

analysis, a court is unable to provide judicial review.”

39 The 

required review is simply not possible here when we are 

provided with nothing more than the kind of one-line 

checklist that is being relied upon. We cannot allow an IJ or 

the BIA to dispense with an adequate explanation of a final 

decision merely to facilitate or accommodate administrative 

expediency. 

Since “the [IJ]’s failure of explanation makes it 

impossible for us to review its rationale, we [will] grant 

[Valarezo-Tirado’s] petition for review, vacate the [IJ’s] 

order, and remand the matter to [the IJ] for further 

proceedings consistent with this opinion.”

40

B.

Valarezo-Tirado also argues that the IJ had a duty to 

develop his testimony about government acquiescence to 

torture because that troubled the IJ and was dispositive in her 

denial of his claim. He supports this argument by citing to our 

line of cases requiring IJs to provide notice to a noncitizen

before denying his or her claim for a lack of corroboration. In 

Toure, for example, we stated that the IJ “has a duty to 

develop [the noncitizen’s] testimony, especially regarding an 

issue that she may find dispositive, and . . . must adequately 

explain the reasons for [her] decisions.”41 The IJ must also

“give the [noncitizen] notice of what corroboration will be 

expected and an opportunity to present an explanation if the 

[noncitizen] cannot produce such corroboration.”42 This “rule 

derives principally from the fact that we cannot have 

meaningful judicial review without giving the applicant 

notice and an opportunity to corroborate.”

43

39 Dia, 353 F.3d at 268 (Stapleton, J., dissenting) (citing 

Chenery Corp., 332 U.S. at 196–97).

40 Abdulai, 239 F.3d at 555. 

41 443 F.3d at 325 (internal citation omitted).

42 Chukwu, 484 F.3d at 192.

43 Saravia, 905 F.3d at 738.
11

As we have already discussed, however, the IJ did not 

adequately explain the reasons for her decision. 

Consequently, we cannot determine if the IJ erroneously 

relied on a lack of corroborating evidence. On remand, 

therefore, to the extent that the IJ concludes Valarezo-Tirado 

must come forth with corroborating evidence, she must 

reopen the proceedings, inform him of the evidence that 

requires corroboration, and must give him an opportunity to 

furnish such information or provide an explanation for its 

absence.44

C.

Finally, Valarezo-Tirado argues that he was denied his 

right to counsel and therefore requires a new hearing at which 

counsel will be present. We cannot agree with that claim. 

“[A]lthough the Fifth Amendment does not mandate 

government-appointed counsel for [noncitizens] at removal 

proceedings, it indisputably affords [a noncitizen] the right to 

counsel of his or her own choice at his or her own 

expense.”

45 In removal proceedings, the right to counsel 

imposes certain obligations on the IJ. She must “[a]dvise the 

[noncitizen] of his or her right to representation, at no 

expense to the government, by counsel of his or her own 

choice . . . and require the [noncitizen] to state then and there 

whether he or she desires representation.”46 She must also 

“[a]dvise the [noncitizen] of the availability of pro bono legal 

services for the immigration court location at which the 

hearing will take place, and ascertain that the [noncitizen] has 

received a list of such pro bono legal services providers.”47 If 

an IJ fails to do so, the noncitizen is entitled to a new hearing 

without a showing of prejudice.48

44 See id. (An IJ must provide the petitioner with “notice [of 

the facts requiring corroboration and] an opportunity to 

provide corroborating evidence or explain its 

unavailability.”).

45 Leslie v. Att’y Gen., 611 F.3d 171, 181 (3d Cir. 2010).

46 Bonilla, 891 F.3d at 91–92 (quoting 8 C.F.R. §

1240.10(a)(1)–(2)).

47 Id. at 92 (quoting 8 C.F.R. § 1240.10(a)(1)–(2)).

48 See Leslie, 611 F.3d at 180.
12

Valarezo-Tirado argues that because there is a right to 

counsel in removal proceedings, that same right should be 

recognized in reviews of reasonable fear determinations. We 

have recognized, however, that the reasonable fear interview 

process differs from removal proceedings and, concomitantly,

so do the protections offered to noncitizens in either process. 

In Bonilla, we recognized this difference and denied a

claim similar to the one Valarezo-Tirado now brings. That 

case is instructive. There, petitioner Sorto Bonilla was 

similarly subject to a reinstated removal order but expressed a 

fear of returning to his home country.49 He appeared before 

the asylum officer with counsel but was unsuccessful. He 

appealed the asylum officer’s negative decision to an IJ.

50

However, Sorto Bonilla appeared before the IJ without 

counsel.

51 The IJ agreed with the asylum officer’s negative 

reasonable fear determination and ordered Sorto Bonilla 

removed. Sorto Bonilla then petitioned for review in this 

Court arguing that he was denied his right to counsel.52

We recognized that the regulations governing reviews 

of reasonable fear determinations “state that [a noncitizen]

‘may be represented by counsel’ at the screening process’ 

first step—the interview with the asylum officer”—but found 

that “the regulations are silent as to whether [a noncitizen]

may have counsel present at the second step of the screening 

process before the IJ.”53 We concluded that Sorto Bonilla had 

“not shown that the regulations explicitly invested him with a 

right to counsel at the IJ’s review hearing, and we need not 

reach the question [] whether he otherwise has such a right . . 

. because Sorto Bonilla ‘was not denied the opportunity to 

obtain the counsel of his choice.’”

54 The same result obtains 

here.

49 891 F.3d at 89.

50 Id.

51 Id. at 90.

52 Id.

53 Id. (quoting 8 C.F.R. § 208.31(c), (g)).

54 Id. (quoting Ponce-Leiva v. Ashcroft, 331 F.3d 369, 376 (3d 

Cir. 2003)).
13

Valarezo-Tirado cannot show that he was denied the 

opportunity to obtain counsel. Valarezo-Tirado was 

specifically asked if he wished to stop the proceedings to 

obtain counsel at his reasonable fear interview. In fact, as 

quoted above, the hearing officer gave him that opportunity 

twice and also offered a list of pro bono and low-cost lawyers 

whom he could consult if he wished to briefly postpone the 

hearing. He declined and stated that he wanted to proceed 

with the interview that day.

His claim regarding the hearing before the IJ fares no 

better. Valarezo-Tirado “was notified that the IJ may allow 

him to be represented at the proceeding and instructed that his 

counsel should be present if he wished to be represented,”

55

but Valarezo-Tirado appeared at the hearing without counsel. 

At the beginning of the hearing, the IJ asked Valarezo-Tirado

if he had received information at his reasonable fear interview 

about his ability to have a lawyer for the hearing before the IJ. 

He affirmed that he had. Also, as in Bonilla, “the IJ noted that 

[Valarezo-Tirado] did not have counsel present, further 

reflecting that the IJ was cognizant of the value of legal 

counsel and did not deprive him of it.”

56 Valarezo-Tirado 

neither objected nor asked for a lawyer during the hearing 

before the IJ. Accordingly, he has not shown that he was 

denied counsel before the IJ.

III.

We realize, and “readily acknowledge that an IJ’s 

position is an impossibly demanding and challenging one.”

57

We have already commented on this above. Moreover, we 

recognized in 2011 that “IJs [were] confronted with an 

exponential growth in their caseloads,” noting that the 

average immigration judge handled over 1500 cases in a 

year.58 And the volume continues to increase. 

55 Id. at 92.

56 Id.

57 Abulashvili v. Att’y Gen., 663 F.3d 197, 208 (3d Cir. 2011).

58 Id. at 208 & n.10.
14

A 2019 study found that “on average each 

[immigration] judge currently has an active pending caseload 

of over two thousand cases.”59 Nevertheless, we cannot allow

incredibly difficult logistics to give license to IJs to skirt their 

responsibilities. This includes the obligation to inform the 

petitioner of the reasons for the IJ’s decision and provide an 

adequate explanation of the decision that does not require us 

to parse through the testimony in search of evidence that 

supports it. A two-sentence recitation on a bullet-point form 

typically will not provide sufficient reasoning for a decision. 

A decision, such as the one here, where the factual basis is 

not stated and cannot be readily ascertained, will never 

suffice. Because, here, the IJ’s decision was not supported by 

substantial evidence, we will vacate the decision and order

and remand to the IJ for proceedings consistent with this 

opinion.

59 Crushing Immigration Judge Caseloads and Lengthening 

Hearing Wait Times, TRAC Immigration (Oct. 25, 2019), 

https://trac.syr.edu/immigration/reports/579/.