This week the Supreme Court reversed without oral arguments a Ninth Circuit case granting asylum to a man from Guatemala. The man claimed to have been threatened by guerrillas during the country’s civil war. His application was rejected by an asylum officer, an immigration judge and the Board of Immigration Appeals, but was granted by the Ninth Circuit. The Ninth Circuit found that the Board had erred in concluding that the past persecution Fredy Ventura suffered was not on account of his political opinion.  In addition, the Ninth Circuit addressed an argument the INS made before the Board, but which the Board did not address. This was that conditions in Guatemala had so changed since 1993, which Ventura entered the US, that even if he had been the victim of persecution, there was no reason to believe he would be now.  Both the INS and Ventura asked the Ninth Circuit to remand the case so that the BIA could address this issue.

Rather than remand the case, however, the Ninth Circuit addressed the issue itself, finding that what changes there were in Guatemala did not eliminate the possibility that Ventura would again face persecution there. The INS then sought review by the Supreme Court, arguing that the case should have been remanded to the Board.

According to the Supreme Court, the Ninth Circuit erred in granting asylum itself, rather than remanding the case back to an immigration judge. In finding that the INS could not rebut the presumption that Ventura would face persecution in Guatemala, the Ninth Circuit was engaged in fact finding. It is well-established that appellate courts are not to engage in fact finding, but are to reach a decision based on facts already in the record. Only in rare cases is it appropriate for an appellate court to act as a fact finder. In addition to this consideration, in administrative matters, there is the fact that the administrative body, in this case the BIA, has more experience and knowledge both of the applicable legal principles and factual situations. Therefore, the Supreme Court reversed the grant of asylum and remanded the case with instructions for the Ninth Circuit to remand it to the Board. 

Tensions between the Supreme Court and the Ninth Circuit have existed for many years, and are growing considerably worse. The Ninth Circuit, which hears cases originating in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, is one of the busiest in the country.  It is also the most liberal federal appellate court, and more of its decisions are reversed by the Supreme Court than any other circuit. The Ninth Circuit also hears more immigration related cases than any other circuit, and has issued many of the most important asylum decisions. In briefs for this case, the US government accused the Ninth Circuit of being overly sympathetic to people seeking asylum. It remains to be seen what effect this case will have on the Ninth Circuit.

The case is INS v. Ventura. The Supreme Court’s opinion is available at http://www.supremecourtus.gov/opinions/02pdf/02-29.pdf.