Visavakumar Thamotar v. U.S. Attorney General
1f4th958
| 11th Cir. | 2021Background
- Visavakumar Thamotar, a Sri Lankan Tamil, entered the U.S. without documents and reported credible fear based on past arrest, torture, and threats by Sri Lankan security forces.
- He applied for asylum, withholding of removal, and CAT relief; the Immigration Judge (IJ) initially found him not credible and denied all relief.
- This Court remanded for further factfinding; on remand the IJ found a pattern/practice of persecution of Tamil failed-asylum-seekers, granted withholding of removal, but again denied asylum in the exercise of discretion (incorporating earlier adverse credibility findings).
- The IJ treated withholding as weighing against asylum and made only a conclusory statement that he had weighed equities; he did not discuss family reunification or 8 C.F.R. § 1208.16(e).
- The Board of Immigration Appeals (BIA) affirmed the discretionary denial and declined to remand for further § 1208.16(e) factfinding. Thamotar timely petitioned the Eleventh Circuit.
- The Eleventh Circuit considered (1) jurisdiction and mootness and (2) whether § 1208.16(e) required renewed reconsideration of the discretionary asylum denial and remand for further factfinding.
Issues
| Issue | Thamotar's Argument | Government's Argument | Held |
|---|---|---|---|
| Jurisdiction / Mootness: Is the petition reviewable though withholding was granted? | Petition is reviewable; denial of asylum remains live because asylum confers additional benefits (family derivatives, path to LPR/citizenship). | Case is not moot because differences between asylum and withholding create a live controversy. | Court has jurisdiction under 8 U.S.C. § 1252 and Article III; petition not moot. |
| Scope of § 1208.16(e): Must agency reweigh the discretionary asylum decision after withholding is granted? | § 1208.16(e) requires a de novo reconsideration of the totality of circumstances, including rebalancing positives/negatives and family-reunification alternatives. | Agency had already considered equities; de novo reweighing not required beyond family-unification inquiry. | § 1208.16(e) requires a fresh, de novo reweighing of the factors and special attention to reasonable alternatives for family reunification. |
| Who must do the reconsideration: BIA or IJ? | IJ should conduct factfinding and reconsideration because the inquiry is fact-intensive. | BIA may review de novo and could address the matter without remand. | The IJ must perform the § 1208.16(e) reconsideration because it often requires factfinding; BIA must remand if IJ failed to do so. |
| Application to this record: Did the agency comply here or must the case be remanded? | IJ failed to address § 1208.16(e) (no inquiry into family reunification or reasonable alternatives); BIA erred by not remanding. | BIA argued it reviewed de novo and no outstanding facts required remand. | The IJ did not adequately reconsider; the BIA’s refusal to remand was manifestly contrary to law and an abuse of discretion. Case vacated and remanded to BIA with instructions to remand to IJ for § 1208.16(e) reconsideration. |
Key Cases Cited
- Sathanthrasa v. Att'y Gen., 968 F.3d 285 (3d Cir. 2020) (§ 1208.16(e) requires de novo reweighing of discretionary asylum factors and special attention to family-reunification alternatives)
- Kalubi v. Ashcroft, 364 F.3d 1134 (9th Cir. 2004) (agency must explain how family separation weighs in the balance when denying asylum in the exercise of discretion)
- Huang v. INS, 436 F.3d 89 (2d Cir. 2006) (discussing § 1208.16(e) and interplay between withholding and asylum discretion)
- Zuh v. Mukasey, 547 F.3d 504 (4th Cir. 2008) (recognizing mandatory reconsideration of asylum where withholding is granted)
- Viracacha v. Mukasey, 518 F.3d 511 (7th Cir. 2008) (order denying asylum but granting withholding constitutes a final order of removal for judicial review)
- Cardoza-Fonseca v. INS, 480 U.S. 421 (1987) (distinguishing asylum eligibility from discretionary grant of asylum)
- Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226 (11th Cir. 2005) (withholding of removal requires showing persecution is "more likely than not")
- Adefemi v. Ashcroft, 386 F.3d 1022 (11th Cir. 2004) (standard for reviewing agency factual findings)