Santhakumar Sathanthrasa v. Attorney General United States ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 18-2925
_______________
SANTHAKUMAR SATHANTHRASA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
________________
On Petition for Review
from the Board of Immigration Appeals
(BIA No. A209-240-315)
Immigration Judge: Walter A. Durling
________________
Argued January 14, 2020
Before: JORDAN, GREENAWAY, JR., and KRAUSE,
Circuit Judges
(Opinion filed: July 30, 2020)
Visuvanathan Rudrakumaran [Argued]
875 Avenue of the Americas
Suite 906
New York, NY 10001
Counsel for Petitioner
Todd J. Cochran [Argued]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
__________
OPINION OF THE COURT
__________
KRAUSE, Circuit Judge.
To be eligible for withholding of removal, a noncitizen
must show a clear probability of future persecution upon
removal to her country of origin, so applicants granted
withholding will necessarily have satisfied the lesser standard
of a well-founded fear of persecution required for eligibility for
asylum. But while withholding is mandatory if the statutory
criteria are satisfied, the decision to grant asylum is ultimately
left to the discretion of the Attorney General and, between the
two forms of relief, only the latter provides a pathway to legal
permanent resident status and a basis to petition for admission
2
of family members as derivative asylees. So the immigration
regulations provide that when a petitioner is denied asylum but
then granted withholding, the denial of asylum “shall be
reconsidered,” and the factors the immigration judge (IJ) must
consider “will include” not only the “reasons for the denial”
but also “reasonable alternatives available” to the petitioner for
family reunification. 8 C.F.R. § 1208.16(e); accord id.§ 208.16(e).1
Here, Petitioner alleges that the IJ failed to consider those
factors and therefore abused his discretion. We agree and thus
will grant the petition, vacate the order of the Board of
Immigration Appeals (the BIA or the Board), and remand with
instructions that the IJ properly reconsider the denial of
asylum.
I. FACTUAL BACKGROUND2
Petitioner Santhakumar Sathanthrasa is a citizen of Sri
Lanka, a country whose modern history has been marked by
1
8 C.F.R. §§ 208.16(e) and 1208.16(e) are identical
provisions, the latter of which applies to the BIA. See Huang
v. INS, 436 F.3d 89, 90 n.1 (2d Cir. 2006). The parties used
these provisions interchangeably throughout the briefing, but
for concision and consistency we will refer only to
§ 1208.16(e).
2
Sathanthrasa is entitled to “a rebuttable presumption of
credibility on appeal,” 8 U.S.C. § 1158(b)(1)(B)(iii), because
although the IJ indicated that he was not “overly enamored
3
civil unrest and violence among the Sinhalese, Moor, and
Tamil populations. See Mohideen v. Gonzales, 416 F.3d 567,
568 (7th Cir. 2005). Sathanthrasa is Tamil and seeks asylum
based on the violence that ethnic minority group has faced at
the hands of not only government forces, but also the Karuna
Group (otherwise known as the People’s Liberation Tigers).
The Karuna Group is a paramilitary organization led by a
former commander of the Liberation Tigers of Tamil Eelam
(LTTE), “a terrorist organization based in northern Sri Lanka”
that waged a more-than-thirty-year-long “violent campaign to
create an independent state for Sri Lanka’s Tamil minority.”
Krishnapillai v. Holder, 563 F.3d 606, 609 (7th Cir. 2009).
After the Karuna Group splintered from the LTTE movement,
its members began working with the Sri Lankan Government
to target Tamil men and women who were suspected LTTE
members, Sathanthrasa among them.
Sathanthrasa’s troubles began in 2007 when his three
brothers were kidnapped by “unknown people.” JA 89, 108,
114. One of his brothers was taken from a bus by “Navy
Officers”; another was kidnapped at gunpoint by “unidentified
persons” in front of his family; and the third was kidnapped by
“some persons in a white van.”3 JA 145. After two years
with the respondent’s testimony,” JA 75, he declined to make
an adverse credibility determination.
3
Peaking in the late 2000s and continuing through most of
the next decade, abductions of Tamils and political dissidents
by individuals in white vans became such a widespread
practice in Sri Lanka that victims were said to be “white
vanned,” and the culture of violence became known as a “white
van culture.” JA 383–84; see also Brief of Professors of Sri
4
passed without word from his siblings, Sathanthrasa reported
the kidnappings to the Human Rights Commission. He did not
ascribe blame to the Karuna Group, reporting only that his
brothers were kidnapped by “unknown people.” JA 113.
Nonetheless, he faced swift retribution.
One day when he was unloading cargo from a tractor,
members of the Karuna Group forcibly dragged him into a
white van and took him to a camp run by the Karuna Group.
In the van and at the camp he was beaten, berated for reporting
the kidnappings, and asked repeatedly whether he had received
training from the LTTE, which he denied. His abductors
“twisted [his] arm, . . . hit [him], and kicked [him] with their
boots on [his] chest.” JA 116. They eventually “pointed a
small gun” at him and told him “to run away without turning
and looking back.” JA 115. Fearing he would be shot,
Sathanthrasa ran, first to a nearby church, then to his
workplace, and next to a hospital, before finally seeking shelter
in his father’s house. The hospital diagnosed him with
“internal injur[ies]” from the beatings, and he was later treated
by an indigenous doctor. JA 116.
Several days after Sathanthrasa fled the camp, individuals
in green uniforms, who Sathanthrasa alleged were members of
either the Karuna Group or the army, came to his father’s house
looking for him. Sathanthrasa saw them approach and
managed to escape out of the back of the house. His father was
not so lucky. He was beaten after being interrogated about
Lankan Politics as Amici Curiae in Support of Respondent at
8–9, DHS v. Thuraissigiam, No. 19-161 (U.S. Jan. 22, 2020),
2020 WL 402612.
5
“where his son was” and responding that Sathanthrasa “had
gone to work and . . . [would] not come back.” JA 117–18.
Eventually, the attackers left with the warning that once
Sathanthrasa returned, he “should stay here without going
anywhere, and [they] will come back.” JA 118.
Fearing for his safety, Sathanthrasa then fled to his uncle’s
house, but there, yet another incident occurred. Shortly after
he arrived, armed members of Sri Lanka’s Criminal
Investigation Department (CID) picked him up and took him
to a police station, where he was detained for two days and
interrogated on suspicion of being affiliated with the LTTE.
Once released, Sathanthrasa worried that if he stayed at his
uncle’s house he would “have [a] lot of trouble,” so he went to
live with his aunt. JA 119–20.
Over the next six years, kidnappings remained
commonplace, and although Sathanthrasa did not suffer
additional threats or attacks during that period, he continued to
fear that he would suffer the same fate as his siblings.
Nonetheless, he did not leave Sri Lanka before 2016 because,
as he testified, he “did not have money” to do so before then,
and “therefore [he] had to later on borrow some money” before
he was able to leave. JA 129. When the IJ inquired about the
source of the funds, Sathanthrasa testified that he “had some
money, . . . pawned jewelry, . . . mortgaged some property,
[and] borrowed money from [his] father’s younger brother and
[his] cousin.” Id. In the interim, Sathanthrasa lived openly,
renting a house with his wife and their two children and
working for a painting company without incident.
6
II. PROCEDURAL HISTORY
Upon entering the United States, Sathanthrasa petitioned
for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). In support of these
claims, Sathanthrasa testified before the IJ concerning the
abuses he experienced in Sri Lanka and his belief that if he
returns to Sri Lanka he will be taken into custody and tortured
“because [he] went and spoke bad about the country, and
because [he] made a complaint about [his] missing siblings.”
JA 122.
The IJ was persuaded only in part. Before issuing his oral
ruling, the IJ indicated that although he planned on granting
withholding of removal, he would deny asylum. In response
to the protest of Sathanthrasa’s counsel that a denial of asylum
would make it impossible for Sathanthrasa to reunite with his
wife and children, the IJ responded that he was “not concerned
about that” and that Sathanthrasa’s counsel was “getting into
areas that [he] d[id not] care about” and that “ha[d] nothing to
do with [his] decision.” JA 138–39. He then proceeded to
announce his ruling.
On the one hand, the IJ granted Sathanthrasa’s petition for
withholding of removal based on the likelihood that
Sathanthrasa would be “tortured or persecuted” as an LTTE
sympathizer or a failed asylum seeker if he returned to Sri
Lanka. JA 77–78. On the other hand, he denied Sathanthrasa’s
petition for asylum on the grounds that Sathanthrasa’s abuse
did not rise to the level of past persecution, that Sathanthrasa
had waited “some seven years” after the last incident to flee to
the United States, and that he was not in hiding during those
intervening years. JA 76–77. Because the IJ granted
7
withholding, he declined to consider Sathanthrasa’s
application for CAT protection.
On Sathanthrasa’s appeal of the denial of asylum, the BIA
promptly reversed and remanded. Because asylum can be
denied based on statutory ineligibility or as a matter of
discretion and it was not clear which formed the basis for the
IJ’s ruling, the Board directed the IJ to clarify his reasoning.
And in view of 8 C.F.R. § 1208.16(e)—which provides that a
denial of asylum “shall be reconsidered” when “an applicant is
denied asylum solely in the exercise of discretion . . . [and] is
subsequently granted withholding of . . . removal under this
section, thereby effectively precluding admission of the
applicant’s spouse or minor children following to join him or
her”—the BIA was explicit that if the denial was discretionary,
the IJ was required to reconsider his asylum ruling, taking into
account the “reasons for the denial” and “reasonable
alternatives available to the applicant such as reunification
with the spouse or minor children in a third country.” JA 45
(citing 8 C.F.R. § 1208.16(e)).
With the case returned to him, the IJ clarified that he was
denying asylum as a matter of discretion. He identified two
reasons for the denial: that Sathanthrasa’s abuse at the hands
of the Karuna Group did not rise to the level of past persecution
because he had suffered only minor injuries when he was
beaten and that Sathanthrasa must have had an “ulterior
motive” for traveling to the United States because his
explanation for the delay was “wholly unpersuasive.” JA 38–
39. Left unaddressed were the issues of family reunification
and the significance of Sathanthrasa’s well-founded fear of
persecution, which the IJ had credited, for the discretionary
denial of asylum. In a footnote, the IJ stated that he had
“considered 8 C.F.R. § 208.16(e) in this regard.” JA 39 n.2.
8
So Sathanthrasa again appealed. This time the BIA
dismissed his petition, asserting that “the only positive factors
[he had] identified were: (1) that his grant of withholding of
removal was not as beneficial to him as asylum; and, (2) that
Tamils have suffered a genocide.” JA 8. By way of reasoning,
the BIA stated only that the IJ “was aware of the situation and
its implications” and that it was “declin[ing] to disturb the
[IJ’s] decision” because Sathanthrasa “ha[d] not identified
error in the factors considered.” Id. Sathanthrasa timely
petitioned this Court for review.
III. JURISDICTION AND STANDARD OF REVIEW
The BIA had jurisdiction pursuant to 8 U.S.C. § 1103 and
8 C.F.R. § 1003.1(b), and we have jurisdiction pursuant to
8 U.S.C. § 1252(a). We review the IJ’s decision “where the
BIA has substantially relied on that opinion,” S.E.R.L. v. Att’y
Gen., 894 F.3d 535, 543 (3d Cir. 2018) (quoting Camara v.
Att’y Gen., 580 F.3d 196, 201 (3d Cir. 2009)), and where the
BIA has adopted the IJ’s decision and conducted its own
analysis, “we review both the IJ’s and the BIA’s decisions,” id.(quoting Ordonez-Tevalan v. Att’y Gen., 837 F.3d 331, 341 (3d
Cir. 2016)).
We review a discretionary denial of asylum for abuse of
discretion, Huang v. Att’y Gen., 620 F.3d 372, 379 (3d Cir.
2010) (citing 8 U.S.C. § 1252(b)(4)(D)), and we will remand if
the decision was “arbitrary, irrational, or contrary to law,”
Tilija v. Att’y Gen., 930 F.3d 165, 170 (3d Cir. 2019) (citation
omitted).
9
IV. DISCUSSION
Because the Government does not contest that Sathanthrasa
established both a well-founded fear of future persecution and
eligibility for withholding of removal, the sole issue before us
is whether the IJ failed to properly reconsider his discretionary
denial of asylum as mandated by 8 C.F.R. § 1208.16(e).4 To
resolve this issue we address briefly the factors that guide a
reconsideration of the discretionary denial of asylum under
§ 1208.16(e) before reviewing the decision of the IJ in this
case.
A. Reconsideration of a discretionary denial of
asylum
In full, § 1208.16(e) provides:
In the event that an applicant is denied asylum
solely in the exercise of discretion, and the
applicant is subsequently granted withholding of
deportation or removal under this section,
4
Some circuits have explored the question of whether the
BIA itself may conduct the required reconsideration, see, e.g.,
Huang, 436 F.3d at 93, but the BIA itself seems to require
remand to the IJ, see In re T-Z-, 24 I. & N. Dec. 163, 176 (BIA
2007). In any event, given the nature of the fact-finding at
issue here, as well as the BIA’s prior remand to the IJ for the
reconsideration mandated by § 1208.16(e), we will remand
with instructions that the Board follow that same procedure
again.
10
thereby effectively precluding admission of the
applicant’s spouse or minor children following
to join him or her, the denial of asylum shall be
reconsidered. Factors to be considered will
include the reasons for the denial and reasonable
alternatives available to the applicant such as
reunification with his or her spouse or minor
children in a third country.
8 C.F.R. § 1208.16(e); accord id. § 208.16(e).5
5
In December 2019, the Department of Homeland Security
issued a proposed rule that would eliminate both 8 C.F.R.
§§ 1208.16(e) and 208.16(e). Procedures for Asylum and Bars
to Asylum Eligibility, 84 Fed. Reg. 69640-01 (proposed Dec.
19, 2019) (to be codified at 8 C.F.R. pts. 208, 1208). Because
“administrative rules will not be construed to have retroactive
effect unless their language requires this result,” Bowen v.
Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988)—and as
the Government conceded at argument, the proposed rule
contains no language stating that it will apply retroactively—
and because rules that “alter existing rights or obligations” may
apply only prospectively, see Appalachian States Low-Level
Radioactive Waste Comm’n v. O’Leary, 93 F.3d 103, 113 (3d
Cir. 1996); see also 5 U.S.C. § 551(4) (agency rules may have
only “future effect”)); see Levy v. Sterling Holding Co., 544
F.3d 493, 506 (3d Cir. 2008), the proposed rule would apply
only prospectively and would not control Sathanthrasa’s
appeal. Notably, however, the proposed rule also makes clear
that family unification is, and would remain, a “crucial factor
in weighing asylum as a discretionary matter.” Procedures for
11
As our sister circuits have recognized, it is both logical and
reasonable that reconsideration of asylum is mandatory for a
petitioner in this “unusual legal status.” Zuh v. Mukasey, 547
F.3d 504, 508 (4th Cir. 2008) (quoting Huang, 436 F.3d at 95).
That is because the petitioner has more than satisfied the “well-
founded fear of persecution” standard required for asylum by
qualifying for withholding of removal. Ghebrehiwot v. Att’y
Gen., 467 F.3d 344, 351 (3d Cir. 2006) (quoting 8 U.S.C.
§ 1101(a)(42)). At the same time, however, having won only
withholding of removal, that same petitioner will be “ineligible
to become a lawful permanent resident here, unable to reunite
his family as derivative asylees, and subject to deportation to a
willing third country.” Zuh, 547 F.3d at 508.
To understand what is required on reconsideration under
§ 1208.16(e), we must begin with what is required in the
normal course. For while an IJ’s reconsideration of asylum
under § 1208.16(e) may be mandatory, the granting of asylum
is not. Serrano-Alberto v. Att’y Gen., 859 F.3d 208, 214 (3d
Cir. 2017). To be sure, a petitioner seeking asylum must
establish statutory eligibility by demonstrating either
“persecution or a well-founded fear of persecution on account
of race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1101(a)(42); see id.§ 1158(b)(1)(A). But statutory eligibility for asylum does not
give rise to a “right to remain in the United States.” INS v.
Cardoza-Fonseca, 480 U.S. 421, 443 (1987) (emphasis
Asylum and Bars to Asylum Eligibility, 84 Fed. Reg. at 69,657
(quoting Fisenko v. Lynch, 826 F.3d 287, 292 (6th Cir. 2016)).
12
omitted). The petitioner must carry her burden of “establishing
that the favorable exercise of discretion is warranted,” Huang,
436 F.3d at 97, and the grant of asylum—ab initio or on
reconsideration—ultimately rests in the Attorney General’s
discretion. Id. at 95; see Serrano-Alberto, 859 F.3d at 214.
But that discretion is not limitless. “[T]he BIA has
established—and federal courts have enforced—extensive
limitations on an IJ’s exercise of discretion.” Huang, 436 F.3d
at 97 (collecting cases). Even on initial consideration of
asylum, the IJ “must examine the totality of the circumstances”
to determine whether a petitioner is entitled to a discretionary
grant of asylum. Id. at 98; accord Zuh, 547 F.3d at 510–11.
Our sister circuits have helpfully set forth a non-exhaustive
list of positive and negative factors that we also adopt today to
guide the IJ’s exercise of discretion in assessing an asylum
application. See, e.g., Huang, 436 F.3d at 98 (collecting cases).
Positive factors include:
1) Family, business, community, and
employment ties to the United States, and length
of residence and property ownership in this
country;
2) Evidence of hardship to the alien and his
family if deported to any country, or if denied
asylum such that the alien cannot be reunited
with family members (as derivative asylees) in
this country;
3) Evidence of good character, value, or service
to the community, including proof of genuine
rehabilitation if a criminal record is present;
13
4) General humanitarian reasons, such as age or
health; [and]
5) Evidence of severe past persecution and/or
well-founded fear of future persecution,
including consideration of other relief granted or
denied the applicant (e.g., withholding of
removal or CAT protection).
Zuh, 547 F.3d at 511; see also Shahandeh-Pey v. INS, 831 F.2d
1384, 1387 (7th Cir. 1987) (listing positive factors).
Negative factors include:
1) Nature and underlying circumstances of the
exclusion ground;
2) Presence of significant violations of
immigration laws;6
6
We note that while violations of immigration laws are
properly part of the inquiry, see, e.g., In re A-B-, 27 I. & N.
Dec. 316, 345 n.12 (Att’y Gen. 2018), overruled in other part
by Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018), “this
factor itself involves a totality of the circumstances inquiry,”
including whether the violation stemmed from an imminent
need to escape persecution, Zuh, 547 F.3d at 511 n.4; In re
Pula, 19 I. & N. Dec. 467, 472–75 (BIA 1987), superseded in
other part by regulation as recognized in Andriasian v. INS,
180 F.3d 1033, 1043–44 & n. 17 (9th Cir. 1999); see also In re
Kasinga, 21 I. & N. Dec. 357, 368 (BIA 1996).
14
3) Presence of a criminal record and the nature,
recency, and seriousness of that record,
including evidence of recidivism;
4) Lack of candor with immigration officials,
including an actual adverse credibility finding by
the IJ; [and]
5) Other evidence that indicates bad character or
undesirability for permanent residence in the
United States.
Zuh, 547 F.3d at 511 (footnote omitted); see also Shahandeh-
Pey, 831 F.2d at 1388 (listing negative factors).
In weighing these factors and making a discretionary
asylum determination, an IJ need not expressly address every
factor, “[b]ut at the very least, [the] IJ must demonstrate that
he or she reviewed the record and balanced the relevant factors
and must discuss the positive or adverse factors that support
his or her decision.” Zuh, 547 F.3d at 511; see Gulla v.
Gonzales, 498 F.3d 911, 916 (9th Cir. 2007); Huang, 436 F.3d
at 98–99; In re Chen, 20 I. & N. Dec. 16, 19 (BIA 1989). This
explicit requirement of balancing is consonant with the
principle that we may affirm an agency’s decision only on “the
grounds invoked by the agency” and the concomitant rule that
those grounds “must be set forth with such clarity as to be
understandable.” SEC v. Chenery Corp., 332 U.S. 194, 196
(1947); see Wang v. Att’y Gen., 423 F.3d 260, 270 (3d Cir.
15
2005) (same); Dia v. Ashcroft, 353 F.3d 228, 241 (3d Cir.
2003) (en banc) (same).7
These lessons apply to both the original consideration of
asylum and its reconsideration under 8 C.F.R. § 1208.16(e).
But when it comes to reconsideration of a discretionary denial
of asylum under § 1208.16(e), four points bear particular
emphasis.
First, where a petitioner has satisfied the even more
demanding standard for persecution for withholding of
removal, a fortiori she has demonstrated a well-founded fear
of future persecution, and a well-founded fear of persecution
“outweigh[s] all but the most egregious adverse factors.” Zuh,
547 F.3d at 512 (alteration in original) (quoting Huang, 436
F.3d at 98); see Marouf v. Lynch, 811 F.3d 174, 180 (6th Cir.
2016) (cataloging a handful of cases in which “egregious
conduct” justified the “unusual” outcome of a discretionary
denial of asylum (citations omitted)); Kalubi v. Ashcroft, 364
F.3d 1134, 1141 (9th Cir. 2004); Shahandeh-Pey, 831 F.2d at
1388; In re Kasinga, 21 I. & N. Dec. 357, 367 (BIA 1996) (en
banc); In re H-, 21 I. & N. Dec. 337, 348 (1996) (en banc).
That is so even when a petitioner has been granted another
form of relief, such as withholding. See Zuh, 547 F.3d at 512
n.5; Huang, 436 F.3d at 98 n.11. Otherwise, “those very
asylum-seekers who met the higher standard of proof of
persecution required for withholding of removal (and thus
7
The balancing requirement can be satisfied, however, so
long as the IJ sets forth his or her reasoning with sufficient
clarity. Chenery does not command that both the IJ and BIA
expressly set forth their reasoning. Dia, 353 F.3d at 243.
16
those persons most in need of this nation’s asylum relief)
would be the ones who received less protection.” Zuh, 547
F.3d at 512 n.5 (quoting Huang, 436 F.3d at 98 n.11).
Second, in making any discretionary asylum determination,
an IJ should consider “[e]vidence of hardship to the alien and
his family if . . . denied asylum such that the alien cannot be
reunited with family members (as derivative asylees) in this
country.” Zuh, 547 F.3d at 511. But this factor must be
considered on reconsideration of the discretionary denial of
asylum under § 1208.16(e). As the regulation makes clear by
its terms, its primary purpose is to address the fact that “[i]n
the event that an applicant is denied asylum solely in the
exercise of discretion . . . [and] is subsequently granted
withholding of . . . removal,” the discretionary denial of
asylum “thereby effectively preclud[es] admission of the
applicant’s spouse or minor children following to join him or
her.” 8 C.F.R. § 1208.16(e). That is because only an asylee
can petition to have family members enter the United States as
derivative asylees. See 8 U.S.C. § 1158(b)(3)(A). With that
precious possibility at stake, the regulation ensures that
“[f]actors to be considered will include . . . reasonable
alternatives available to the applicant such as reunification
with his or her spouse or minor children in a third country.”
8 C.F.R. § 1208.16(e) (emphasis added).
Third, it is not sufficient on reconsideration for the IJ to
consider and address only the factor of reasonably available
alternatives to family reunification. While that factor carries
significant weight, the IJ must also consider the “reasons for
the denial” of asylum. 8 C.F.R. § 1208.16(e). By mandating
that the IJ consider the “reasons for the denial and reasonable
alternatives” for family reunification in the conjunctive, id.(emphasis added), the regulation makes clear that a de novo
17
reweighing of the positive and negative factors is required. See
Alimbaev v. Att’y Gen., 872 F.3d 188, 201 (3d Cir. 2017)
(instructing that on remand, the immigration agency must
reconsider the factor on which it erred “before [then] weighing
the various positive and negative factors”). In that reweighing,
moreover, the IJ must pay special attention to the availability
of “reasonable alternatives” for family reunification, 8 C.F.R.
§ 1208.16(e), and to the principle that a well-founded fear of
persecution “outweigh[s] all but the most egregious adverse
factors,” Zuh, 547 F.3d at 512 (alteration in original) (citation
omitted).
Fourth, the need for the IJ to identify and discuss the factors
informing her decision is all the more acute on reconsideration
under § 1208.16(e). “Discretionary denials of asylum are
exceedingly rare,” Huang, 436 F.3d at 92, and are “even more
rare when the IJ or BIA has found the applicant entitled to
withholding of removal,” Zuh, 547 F.3d at 507. For that
reason, they are carefully scrutinized by the Courts of Appeals
and have been vacated where the IJ failed to balance the
relevant factors, see Huang, 436 F.3d at 99; see also
Shahandeh-Pey, 831 F.2d at 1387–90; where the IJ’s
conclusion was internally inconsistent, see Marouf, 811 F.3d
at 190; Zuh, 547 F.3d at 513; or where the IJ failed to provide
sufficient explanation for the reviewing court to determine that
she “heard, considered, and decided” the issue, Kalubi, 364
F.3d at 1141 (citation omitted). In the ordinary course, an IJ is
expected to “demonstrate that he or she reviewed the record
and balanced the relevant factors and [to] discuss the positive
or adverse factors that support his or her decision,” Zuh, 547
F.3d at 511; when reconsidering the discretionary denial of
asylum under § 1208.16(e), a thoughtful balancing and robust
18
discussion is essential both to ensure the IJ’s decision is sound
and to render it capable of meaningful review.
B. Application to the BIA’s and IJ’s opinions
With these principles in mind, we readily conclude that the
IJ here did not properly reconsider his discretionary denial of
asylum under § 1208.16(e) and that the BIA erred in finding it
sufficient that the IJ “was aware of the situation and its
implications,” JA 8.
First, having determined that Sathanthrasa had a well-
founded fear of persecution, the IJ should have considered that
factor to “outweigh[] all but the most egregious adverse
factors.” Zuh, 547 F.3d at 512. Instead, the IJ grounded the
discretionary denial of asylum on Sathanthrasa’s failure to
establish past persecution and his purported “ulterior motive”
for traveling to the United States. JA 39. The IJ made no
mention of the weight to be accorded Sathanthrasa’s well-
founded fear of persecution, nor did he explain how the factors
he identified were sufficiently egregious to outweigh the
credible threat of harm Sathanthrasa faced if returned to Sri
Lanka. See Zuh, 547 F.3d at 512; Huang, 436 F.3d at 98, 100;
Shahandeh-Pey, 831 F.2d at 1388.
Second, family reunification should have been treated as
relevant both to the IJ’s original decision and on his
reconsideration. See 8 C.F.R. § 1208.16(e); Huang, 436 F.3d
at 101; In re T-Z-, 24 I. & N. Dec. 163, 176 (BIA 2007). Yet
on neither occasion was that factor clearly considered. In the
first instance, the IJ stated that he was “not concerned” and
“d[id not] care about” family reunification. JA 138–39. He
even went so far as to assert that family reunification “ha[d]
nothing to do with [his] decision.” JA 139. And on
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reconsideration, even though the BIA remanded with specific
instructions to consider family circumstances, the IJ failed to
mention, much less discuss, family reunification, relegating to
a footnote the cryptic comment that he “ha[d] considered
8 C.F.R. § 208.16(e) in this regard.” JA 39 n.2. That cursory
treatment only reinforces our concern that the IJ indeed treated
family unification as having “nothing to do with [his]
decision,” JA 139. See Zuh, 547 F.3d at 512 (citing Huang,
436 F.3d at 99).
Third, although § 1208.16(e) requires reconsideration of
the “reasons for the denial,” there is no indication in the record
that the IJ engaged in a de novo balancing of factors on
reconsideration. He failed to discuss any positive factors
weighing in favor of asylum, inexplicably ignoring both
Sathanthrasa’s well-founded fear of persecution, which he
credited for purposes of withholding of removal, and the
regulation’s express requirement of consideration of family
reunification. Instead, the IJ recited, almost verbatim, the same
negative factors he originally identified as grounds for his
initial denial of asylum, namely Sathanthrasa’s failure to
establish past persecution and his “ulterior motive” for
traveling to the United States. JA 38–39. The IJ’s treatment
of those negative factors was problematic in and of itself.8 But
8
First, as intervening case law has made clear, violence and
threats of violence must be considered cumulatively for
purposes of assessing past persecution. See Doe v. Att’y Gen.,
956 F.3d 135, 143–44 (3d Cir. 2020); Herrera-Reyes v. Att’y
Gen., 952 F.3d 101, 106–07 (3d Cir. 2020) (collecting cases).
Yet the IJ focused only on the facts that Sathanthrasa had not
been “serious[ly]” injured by the Karuna Group or beaten by
the police and had not suffered further abuse after 2009. JA
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even accepting those factors at face value, the IJ erred in failing
to explain why those factors should be considered among “the
most egregious adverse factors” capable of outweighing not
only Sathanthrasa’s well-founded fear of persecution but also
38. In doing so, the IJ failed to consider the kidnappings of
Sathanthrasa’s three siblings; his father’s beating; his mother’s
testimony that she was held at gunpoint while one of his
brothers was abducted; the threat that he would be killed when
members of the Karuna Group pointed a gun at him and told
him to “run away without turning and looking back,” JA 115;
or the cryptic threat that he should stay at his father’s house
“without going anywhere” because his father’s attackers would
“come back,” JA 118. Second, an adverse credibility
determination is not properly based on an absence of testimony
when “no one ever asked” the petitioner for clarification. See
Li Wu Lin v. INS, 238 F.3d 239, 246 (3d Cir. 2001); see also
Dia, 353 F.3d at 250 (an adverse credibility determination must
be based on “specific, cogent reason[s]” not “speculation,
conjecture, or an otherwise unsupported personal opinion”).
But while neither the Government nor the IJ requested an
explanation from Sathanthrasa, the IJ discredited his stated
reason for his delayed departure on the ground that he “did not
explain why his family could not have simply sold their
personal property much earlier.” JA 38. Because we conclude
the IJ’s failure to weigh family reunification in the mix requires
a remand for full reconsideration of the discretionary denial of
asylum, Huang, 436 F.3d at 101, including the “reasons for the
denial,” 8 C.F.R. § 1208.16(e), there will be ample opportunity
on remand for the IJ to reconsider the past persecution
determination and to explore Sathanthrasa’s stated reason for
his delay in leaving Sri Lanka with these cases in mind.
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the hardship he would suffer if he could not reunite with his
wife and children. See Zuh, 547 F.3d at 512 (citation omitted);
Huang, 436 F.3d at 98–99, 102 (remanding to the agency when
the IJ abused his discretion by focusing only on negative
factors); Shahandeh-Pey, 831 F.2d at 1388–90.
The BIA then compounded these errors by concluding,
without analysis, that the IJ was aware of “the only [two]
positive factors” Sathanthrasa had identified: (1) that a “grant
of withholding of removal was not as beneficial to him” as a
grant of asylum; and (2) that “Tamils have suffered a
genocide.” JA 8. The implication from the BIA’s opinion and
the thrust of the Government’s argument on appeal is that
Sathanthrasa failed to carry his burden of identifying positive
factors that weighed in favor of a discretionary grant of asylum.
But while the burden of establishing entitlement to a
discretionary grant of asylum rests on the petitioner, Huang,
436 F.3d at 97, special considerations apply on reconsideration
pursuant to § 1208.16(e). At that point, not only has the
petitioner established a well-founded fear of persecution, but
also the IJ must consider family circumstances. 8 C.F.R.
§ 1208.16(e). An IJ who fails to follow those mandates—or
worse, disavows them—necessarily abuses her discretion. Cf.
Filja v. Gonzales, 447 F.3d 241, 254 (3d Cir. 2006). The
Government’s position to the contrary is particularly baffling
on the record before us: Why should we fault Sathanthrasa for
failing to present evidence of the hardships caused by family
separation when the IJ short-circuited that discussion by
stating, over the objections of Sathanthrasa’s counsel, that he
was “not concerned about that,” JA 138, and that it had
“nothing to do with [his] decision,” JA 139?
Finally, the explications of the IJ and BIA leave much to be
desired. The sole indication that the IJ understood his duty to
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reconsider a discretionary denial of asylum is the stray footnote
stating he had “considered 8 C.F.R. § 208.16(e).” JA 39 n.2.
That passing mention does not allow us, as the reviewing court,
to determine that he “heard, considered, and decided” the issue.
Kalubi, 364 F.3d at 1141 (citation omitted). To the contrary, it
leaves us with nothing of substance to review. Cf. Awolesi v.
Ashcroft, 341 F.3d 227, 232 (3d Cir. 2003) (“[T]o give
meaningful review to the BIA’s decision, we must have some
insight into its reasoning.”). The BIA’s opinion is no less
concerning: The sole justification for its affirmance was its
assertion that the IJ “was aware of the situation and its
implications.” JA 8. We do not share that confidence in view
of the internal inconsistency of the IJ’s crediting
Sathanthrasa’s well-founded fear of persecution for purposes
of withholding but not for asylum, the IJ’s explicit refusal to
consider family circumstances, and the absence of any
indication that the IJ conducted a de novo review of the factors
weighing for and against asylum.
III. CONCLUSION
In sum, because the IJ did not reconsider the discretionary
denial of asylum in this case in the manner required by
§ 1208.16(e) and our case law, he abused his discretion.
Accordingly, we will grant Sathanthrasa’s petition, vacate the
BIA’s order, and remand to the BIA with instructions for the
IJ to properly reconsider the discretionary denial of asylum.
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