SANTHAKUMAR SATHANTHRASA, Pеtitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA
No. 18-2925
United States Court of Appeals for the Third Circuit
July 30, 2020
On Petition for Review from the Board of Immigration Appeals (BIA No. A209-240-315) Immigration Judge: Walter A. Durling
Opinions of the United States Court of Appeals for the Third Circuit
7-30-2020
Santhakumar Sathanthrasa v. Attorney General United States
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“Santhakumar Sathanthrasa v. Attorney General United States” (2020). 2020 Decisions. 715. https://digitalcommons.law.villanova.edu/thirdcircuit_2020/715
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Argued January 14, 2020
Before: JORDAN, GREENAWAY, JR., and KRAUSE, Circuit Judges
(Opinion filed: July 30, 2020)
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
Here, Petitioner alleges that the IJ failed to consider those factors and therefore abused his discretion. Wе 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 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 “unknоwn 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
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 indigenоus 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
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 commonрlace, 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.
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
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
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 beсause 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
III. JURISDICTION AND STANDARD OF REVIEW
The BIA had jurisdiction pursuant to
We review a discretionary denial of asylum for аbuse of discretion, Huang v. Att‘y Gen., 620 F.3d 372, 379 (3d Cir. 2010) (citing
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
A. Reconsideration of a discretionary denial of asylum
In full,
In the event that an applicant is denied asylum solely in the exercisе of discretion, and the applicant is subsequently granted withholding of deportation or removal under this section,
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.
To understand what is required on reconsideration under
Asylum and Bars to Asylum Eligibility, 84 Fed. Reg. at 69,657 (quoting Fisenko v. Lynch, 826 F.3d 287, 292 (6th Cir. 2016)).
But that discretion is not limitless. “[T]he BIA has establishеd—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:
- Family, business, community, and employment ties to the United States, and length of residence and property ownership in this country;
- 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;
- Evidence of good character, value, or service to the community, including proof of genuine rehabilitation if a criminal record is present;
General humanitarian reasons, such as age or health; [and] - 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:
- Nature and underlying circumstances of the exclusion ground;
- Presence of significant violations of immigration laws;6
Presence of a criminal record and the nature, recency, and seriousness of that record, including evidence of recidivism; - Lack of candor with immigration officials, including an actual adverse credibility finding by the IJ; [and]
- 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 thаt 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. 2005)
These lessons apply to both the original consideration of asylum and its reconsideration under
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 mеt the higher standard of proof of persecution required for withholding of removal (and thus
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
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.
Fourth, the need for the IJ to identify and discuss the factors informing her decision is all the more acute on reconsideration under
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
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 factоrs.” 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 recоnsideration. See
Third, although
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 pеtitioner 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 fоr full reconsideration of the discretionary denial of asylum, Huang, 436 F.3d at 101, including the “reasons for the denial,”
The BIA then compounded these errors by concluding, without analysis, that the IJ was aware of “the only [two] positive factors” Sathanthrasa had identifiеd: (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
Finally, the explications of the IJ and BIA leave much to be desired. The sole indication that the IJ understood his duty to
III. CONCLUSION
In sum, because the IJ did not reconsider the discretionary denial of asylum in this case in the manner required by