17 F.4th 1365
11th Cir.2021Background
- Jathursan, a Sri Lankan Tamil, entered the U.S. without inspection in 2018, expressed fear of return, and applied for asylum, withholding of removal, and CAT protection; DHS found a credible fear and issued a notice to appear.
- He alleged persecution by the EPDP (a paramilitary group) and incidents involving the Sri Lankan army: extortion, beatings, and a three-day abduction/detention in which he was beaten and an iron rod was forced through his rectum; police did not protect him.
- He claimed protected-ground status as Tamil (race/ethnicity), imputed LTTE support, imputed LTTE membership via his brother, and status as a Tamil failed asylum seeker; he submitted country reports and news articles describing torture of returned Tamil failed asylum seekers.
- The immigration judge found Jathursan credible but denied asylum and withholding based on past persecution (concluding assailants were financially motivated) and rejected the asserted social group of “returned asylum seekers” as not cognizable; the IJ did not analyze the specific group “Tamil failed asylum seekers.”
- The BIA affirmed but misstated the record by attributing to the IJ a finding about Tamil failed asylum seekers that the IJ never made and failed to address the IJ’s lack of analysis; the BIA also ignored the three-day EPDP detention in its CAT analysis and did not assess government consent/acquiescence.
- The Eleventh Circuit granted the petition in part, denied review as to past-persecution findings (substantial evidence supported the nexus ruling), vacated and remanded the BIA’s denial for further consideration of (1) asylum and withholding claims based on fear as a Tamil failed asylum seeker and (2) the CAT claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Past persecution nexus | Past assaults, abduction, and torture were on account of Tamil ethnicity/imputed LTTE links | Assaults motivated by pecuniary gain, not a protected ground | Court: substantial evidence supports IJ/BIA that nexus to a protected ground was not shown; asylum/withholding based on past persecution denied |
| Well-founded fear as a Tamil failed asylum seeker | There is a pattern/practice of persecution of Tamil failed asylum seekers; documentary evidence supports a well-founded fear | IJ/BIA treated group as generic "returned asylum seekers" and found group not cognizable; BIA failed to give reasoned consideration | Court: BIA failed to give reasoned consideration and misstated the record; remand for BIA to consider claims based on Tamil failed asylum seeker group |
| Withholding of removal (higher burden) | Same factual record supports "more likely than not" risk if BIA properly considers Tamil failed asylum seeker claim | IJ denied asylum; therefore applicant cannot meet the higher withholding standard | Court: Because BIA failed to consider the Tamil failed-asylum-seeker theory, withholding claim must also be remanded |
| CAT protection | Applicant was previously tortured and submitted evidence that EPDP acts with government acquiescence, creating likelihood of future torture | BIA characterized documentary evidence as detainee-focused and noted applicant had not been detained by government actors, so no clear probability of future torture | Court: BIA misstated and ignored record (EPDP detention) and failed to address acquiescence evidence; remand for reasoned consideration of CAT claim |
Key Cases Cited
- Tang v. U.S. Att’y Gen., 578 F.3d 1270 (11th Cir. 2009) (review of BIA decision when BIA adopts IJ reasoning)
- Lopez v. U.S. Att’y Gen., 914 F.3d 1292 (11th Cir. 2019) (standard of review for BIA factual findings and legal conclusions)
- Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223 (11th Cir. 2007) (elements for asylum based on past persecution and well-founded fear)
- Lingeswaran v. U.S. Att’y Gen., 969 F.3d 1278 (11th Cir. 2020) (pattern-or-practice theory for future persecution)
- Jeune v. U.S. Att’y Gen., 810 F.3d 792 (11th Cir. 2016) (BIA must give reasoned consideration and not misstate record)
- Perez-Guerrero v. U.S. Att’y Gen., 717 F.3d 1224 (11th Cir. 2013) (what constitutes reasoned consideration by the BIA)
- Rivera v. U.S. Att’y Gen., 487 F.3d 815 (11th Cir. 2007) (withholding requires higher "more likely than not" standard than asylum)
- Jean-Pierre v. U.S. Att’y Gen., 500 F.3d 1315 (11th Cir. 2007) (remand required when BIA ignores petitioner’s grounds for CAT relief)