Jersey City, New Jersey – Sometimes even when a non-citizen respondent in court loses his or her case, the law established by the court can be important, or even favorable, for people in similar legal or factual scenarios in the future. On July 2, 2020, the Third Circuit Court of Appeals decided such a case in Romero v. Attorney General. The Third Circuit affirmed the Immigration Judge’s decision that Mr. Romero could not establish a reasonable fear of being returned to Mexico, but in doing so the Third Circuit established that review of such decisions would be subject to a “substantial evidence test” rather than the more deferential standard of review requested by the government of “facially legitimate and bona fide reason.”

Mr. Romero was twice ordered removed from the United States before entering a third time. After entering the third time, he spent six years in the U.S. before being detained by the Department of Homeland Security. When he was detained, he claimed he was afraid to return to Mexico because a man there would harm him. When a person already subject to an order of removal claims a fear of returning to his native country, that person is entitled to a Reasonable Fear Interview with an asylum officer. If the asylum officer determines the person has a reasonable fear of being returned to the native country, the person will be referred to the immigration court to present an application for Withholding of Removal and/or relief pursuant to the Convention Against Torture. IF an asylum officer finds there is no reasonable fear of return, the case is review by a supervisor. If the supervisor agrees (which they almost always do), the person will be removed unless s/he appeals to an immigration judge. If the immigration judge affirms the finding of no reasonable fear, it is considered a final order of removal and is subject to a petition for review to the circuit court of appeals with the proper geographic jurisdiction. Such was the procedural background that brough Mr. Romero’s claim before the Third Circuit Court of Appeals, which began its analysis be determining the proper standard of review.

The Substantial Evidence Test is an “extraordinarily deferential standard” asking whether the immigration judge’s decision is “supported by reasonable, substantial and probative evidence on the record considered as a whole.” The immigration judge’s findings of fact will not be disturbed unless the court concludes “any reasonable adjudicator would be compelled to conclude to the contrary.” The government’s proposed standard of review, facially legitimate and bona fide reason, has only one application, which is denial of visas by consular officials overseas. It exists because the power to exclude aliens in inherent in sovereignty and exclusive to the political branches of government. The court here rejected the government’s request to extend this standard of review to other contexts.

Don’t be fooled by this decision – the substantial evidence test is still “an extraordinarily deferential standard,” but the standard of review proposed by the government, had it been adopted, would have made it virtually impossible to ever reverse a reasonable fear finding by an immigration judge. In that sense, that this decision still provides a glimmer of hope, a chance, for future applicants seeking review of reasonable fear findings, this decision is a small, though meaningful, victory for immigrants.

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