Herrera-Alcala v. Garland

39 F.4th 233

Oscar HERRERA-ALCALA, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

Capital Area Immigrants' Rights Coalition, Amicus Curiae.

Oscar Herrera-Alcala, Petitioner,

v.Merrick B. Garland, Attorney General, Respondent.

Capital Area Immigrants' Rights Coalition, Amicus Curiae.

No. 20-1770

No. 20-2338

United States Court of Appeals, Fourth Circuit.

Argued: September 23, 2021

Decided: June 30, 2022

ARGUED: Christopher David Boom, DUQUE, KELLEY AND ASSOCIATES, PLLC, Doral, Florida, for Petitioner. James A. Hurley, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Brian M. Boynton, Acting Assistant Attorney General, Anna E. Juarez, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Adina Applebaum, CAPITAL AREA IMMIGRANTS' RIGHTS (CAIR) COALITION, Washington, D.C.; Benjamin R. Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER, LLC, Alexandria, Virginia, for Amicus Curiae.

Before RICHARDSON and QUATTLEBAUM, Circuit Judges, and KEENAN, Senior Circuit Judge.

Petitions for review denied by published opinion. Judge Richardson wrote the opinion, in which Judge Quattlebaum and Senior Judge Keenan joined.

RICHARDSON, Circuit Judge:

Oscar Herrera-Alcala, a Cuban alien, petitions for review of the Board of Immigration Appeals decision denying his application for asylum, withholding of removal, and Convention Against Torture ("CAT") protection. But the government first argues that we should not hear this case, as venue lies in the Fifth Circuit. Interpreting the venue statute, we find that venue is proper in this court because the Immigration Judge completed the proceedings in Virginia, which is within our judicial circuit.

Finding we may decide the questions presented, we then reject the petition. The Immigration Judge found both the petitioner's testimony and his supporting evidence non-credible, and we defer to the Immigration Judge's factual findings because they are supported by substantial evidence. Given that deference, we deny the petition.

I. Venue is Proper in this Court

Before turning to the testimony and evidence, we must first decide whether Herrera-Alcala's petition is in the correct Court of Appeals. He illegally entered the United States at the Texas border. He alleged that he was tortured for his political protest in Cuba and sought asylum, withholding of removal, and CAT protection. The Department of Homeland Security ordered him to appear before an Immigration Judge at a Louisiana processing center.

The Immigration Judge held a videoconference hearing.¹ Herrera-Alcala appeared from a Louisiana correctional facility. The Immigration Judge, George Ward, sat in Virginia at the Falls Church Immigration Adjudication Center. After hearing testimony, the Immigration Judge issued an oral decision denying relief to Herrera-Alcala. After the Board of Immigration Appeals affirmed, Herrera-Alcala petitioned for review in the Fourth Circuit, which he contends is the proper venue for review under 8 U.S.C. § 1252(b)(2) because the Immigration Judge attended the hearing from Virginia. The Attorney General disagrees—arguing that § 1252(b)(2) requires the petition to be heard in the Fifth Circuit where Herrera-Alcala appeared for the hearing—and asks us to transfer the case there.

Section 1252(b)(2) specifies that a petition for review of an order of removal "shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings." During the video conference hearing, Herrera-Alcala was in the Fifth Circuit (Louisiana) and the Immigration Judge was in the Fourth Circuit (Virginia).

We begin, of course, with the statutory text. The court of appeals with which the petition shall be filed is identified as the one for a specific "judicial circuit." In our federal system, judicial circuits are defined by geography. 28 U.S.C. § 41 (specifying that the Fourth Circuit, for example, is "constituted as follows ... Maryland, North Carolina, South Carolina, Virginia, West Virginia").² To answer which geographic circuit a petition for review "shall be filed," the statute directs us to where "the immigration judge completed the proceedings." The actor is the Immigration Judge and the action is "complet[ing] the proceedings." So the statute's text directs us to the geographic location where the Immigration Judge completed the proceeding. And here, the Immigration Judge sat in Virginia during the proceedings. So whatever action the Immigration Judge took to "complete[ ] the proceedings" must have occurred in the Fourth Circuit.

This straightforward reading of the statutory text aligns with our precedent. In Sorcia v. Holder , 643 F.3d 117, 123 (4th Cir. 2011), the Immigration Judge and alien were in the Eleventh Circuit (Georgia), but the government participated by teleconference from the Fourth Circuit (North Carolina). Though the hearing transcript and order both stated the hearing place was North Carolina, the Immigration Judge explained that "the Court [is] sitting in Atlanta." Id. (alteration in original). And the Order explained that "the oral decision" was the official opinion for review. Id. This Court noted that the "oral decision was undisputedly issued from Atlanta" where the Immigration Judge sat, and "we conclude[d] that Atlanta [was] the location where the proceedings were completed."³ Id. In reaching that conclusion, the Sorcia court relied on Ramos v. Ashcroft , 371 F.3d 948, 949 (7th Cir. 2004), which it took to hold "that even when teleconferencing takes place, immigration proceedings are completed ‘where the court is located and the order issued.’ " Sorcia , 643 F.3d at 123 (quoting Ramos , 371 F.3d at 949 )⁴ So Sorcia held that venue is proper where the immigration judge sits in a teleconference hearing. And its reasoning applies equally here.⁵

Even so, the government argues that the location of the petitioner, and not location of the Immigration Judge, should determine venue under § 1252(b)(2). But nothing in the statute permits that outcome. The prior venue provision that applied until 1996, when § 1252(b)(2) was enacted, permitted venue where the petitioner resided as an alternative to where "the administrative proceedings ... were conducted." 8 U.S.C. § 1105a(a)(2) (1994). But in enacting § 1252(b)(2), Congress removed that alternative venue provision. And it focused the statute on the location of the Immigration Judge by changing the phrase from a passive one that did not identify the actor (where the "administrative proceedings ... were conducted," § 1105a(a)(2) (1994) ), to an active one that named the Immigration Judge as the sole actor (where "the Immigration Judge completed the proceedings," § 1252(b)(2) ). So there is no textual basis to conclude that the alien's location determines venue.

Despite the statutory language, the government asks that we defer to the Board of Immigration Appeals's holding that "removal proceedings before the Immigration Judge in this matter were completed in Jonesboro, Louisiana." A.R. 13 n.1.⁶ The Board based this conclusion on the petitioner's location. See A.R. 13 n.1 ("The respondent was located in the jurisdiction of the United States Court of Appeals for the Fifth Circuit, and we will analyze his claims under the precedential decisions of the Board and the Fifth Circuit."). But the text of § 1252(b)(2) unambiguously focuses on the Immigration Judge and does not reference where the petitioner resides or participates in the proceeding, so deference to the agency is not appropriate here. See Julmice v. Garland , 29 F.4th 206, 207 (4th Cir. 2022) (noting that we defer to the Board on questions of statutory interpretation "[i]f—and only if—our interpretive toolkit leaves us with a genuine ambiguity").⁷

Amicus helpfully submitted a brief here arguing that the place where the Immigration Judge completed the proceedings was neither Virginia nor Louisiana, but Minnesota—the location of the administrative control court, which performed back-end clerical work such as of accepting filings and transmitting the Immigration Judge's order to petitioner.⁸ Though the judge and parties were not located there, amicus argues that this is the place where the proceedings as a whole were completed because it is the place where the case is formally closed and from which the written order is sent. Minnesota is also considered, by regulation, the "venue" of the proceedings. See 8 C.F.R. §§ 1003.14, 1000.20. Perhaps under the pre-1996 statute, the administrative control court in Minnesota might be where "the administrative proceedings ... were conducted." 8 U.S.C. § 1105a(a)(2) (1994). But § 1252(b)(2) does not ask where the administrative control court is located, where regulatory "venue" exists, or even where the proceedings are concluded. The statute asks where the "Immigration Judge completed the proceedings."

§ 1252(b)(2). And there can be no doubt the Immigration Judge was in Virginia.

Venue under § 1252(b)(2) depends on the location of the Immigration Judge. And the Immigration Judge was in Falls Church, Virginia, making venue proper in the Fourth Circuit.

II. Asylum, Withholding of Removal, and CAT Protection

Having found that Herrera-Alcala is in the correct circuit, we may now turn to the merits. He sought relief based on his mistreatment after he spoke out against the Cuban government. The Immigration Judge found that Herrera-Alcala was not credible and also concluded that even if he were credible, his allegations failed to warrant relief. The Board of Immigration Appeals affirmed.

A. Immigration Proceedings

To understand the board's decision, we must consider Herrera-Alcala's various claims. At the hearing, Herrera-Alcala claimed to be a political dissident fleeing Cuba after years of intensifying harassment by the government reached an unbearable level. He claimed Cuban police seized equipment he used for...