VISAVAKUMAR THAMOTAR v. U.S. ATTORNEY GENERAL
No. 19-12019
United States Court of Appeals for the Eleventh Circuit
June 17, 2021
Agency No. A209-230-482
Before WILSON, JILL PRYOR and LAGOA, Circuit Judges.
[PUBLISH]
Petition for Review of a Decision of the Board of Immigration Appeals
(June 17, 2021)
Visavakumar Thamotar, a Sri Lankan citizen of Tamil ethnicity, seeks review of the Board of Immigration Appeals’
Here, the Immigration Judge failed to reconsider Mr. Thamotar‘s asylum claim under
I. BACKGROUND
In this appeal, Mr. Thamotar comes before us for the second time seeking review of a BIA order denying him relief, after we ordered a remand to the BIA in his first appeal. At issue this time is the BIA‘s order affirming the Immigration Judge‘s decision denying Mr. Thamotar asylum and granting him withholding of removal after remand. Because this order refers to Mr. Thamotar‘s first removal hearing and the corresponding decisions of the Immigration Judge and BIA before remand, we briefly review these prior proceedings as well as Mr. Thamotar‘s application for relief before discussing the order on appeal.
A. Mr. Thamotar‘s Entrance into the United States and Application for Asylum and Related Relief
Mr. Thamotar entered the United States without valid entry documents at a designated port of entry, telling immigration officials at the border that he feared returning to his home country of Sri Lanka. An immigration official gave him a credible fear interview. During the interview, Mr. Thamotar explained that Sri Lankan army police officers arrested and harmed him
While Mr. Thamotar was imprisoned at the camp, for 14 days, he was hung upside down, beaten, and given urine to drink instead of water. Three days after his release, army officials “came to [his] home and beat [him],” attacked his wife and son, and threatened to kill his daughter. AR 1366.4 Mr. Thamotar said he could not return to Sri Lanka because officials there would kill him.
The Department of Homeland Security issued Mr. Thamotar a notice to appear, charging him as removable as an applicant for admission without a valid entry document.
Mr. Thamotar applied for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“CAT“) based on his race, political opinion, nationality, and membership in a particular social group. In support of his application, Mr. Thamotar attached a personal statement and affidavits from his wife and father. There were inconsistencies across his credible fear interview, application, and accompanying materials, including the date of his marriage, the date army officials came to his home and attacked his family, and whether Mr. Thamotar himself was attacked when officials came to his home. These discrepancies led the Immigration Judge to find Mr. Thamotar not credible.
B. First Removal Hearing and First Appeal to the BIA and this Court
At his first removal hearing, Mr. Thamotar reiterated much of the account from his credible fear interview and personal statement. He also elaborated on his flight from Sri Lanka, testifying that he traveled through the Ivory Coast, Ghana, Ecuador, Colombia, Panama, Costa Rica, Nicaragua, Honduras, Guatemala, and Mexico, where he was detained by Mexican officials for one day. Mr. Thamotar said that he did not apply for asylum in any of the countries he traveled through before coming to the United States because he was unaware that he could.
DHS argued at the hearing that Mr. Thamotar should not receive asylum “as a matter of discretion” because, among other reasons, he was not credible and he passed through several countries before seeking asylum in the United States. AR 673-74. The Immigration Judge continued the proceedings, in part to allow Mr. Thamotar to respond to DHS‘s argument regarding denying asylum in the exercise of discretion. Mr. Thamotar then submitted a brief arguing that discretionary denials of asylum are exceedingly rare and that the Immigration Judge “must consider the impact of the asylum denial on [Mr. Thamotar‘s] ability ‘to be reunited with his spouse and minor child.‘” Id. at 767 (quoting In re T-Z-, 24 I. & N. Dec. 163, 176 (B.I.A. 2007) (citing
In a written decision, the Immigration Judge denied Mr. Thamotar‘s application for asylum, withholding of removal, and CAT relief, finding that his account of persecution was inconsistent with other evidence in the record and was therefore not credible. In relevant part, the Immigration Judge noted that Mr. Thamotar‘s wife swore in her affidavit that they married in October 2007, yet Mr. Thamotar stated in his asylum application that they married in October 2006, and that the record was inconsistent regarding when officials assaulted his wife and whether he was assaulted as well.
Because the Immigration Judge found Mr. Thamotar not credible, he concluded that Mr. Thamotar could not meet his burden of proof for asylum or withholding of removal. The Immigration Judge further observed that even if Mr. Thamotar had established that he suffered past persecution or had a well-founded fear of future persecution, he still would not be granted asylum because his only “positive equity [was] his health,” and that did not outweigh the “negative equities,” including his inconsistent testimony and lack of candor. Id. at 583. The Immigration Judge also denied Mr. Thamotar CAT relief, noting that Mr. Thamotar had failed to establish that it was more likely than not that he would be tortured in Sri Lanka.
Mr. Thamotar appealed to the BIA, which adopted and affirmed the Immigration Judge‘s decision. He then filed a petition for review in this Court. The government moved to remand the case in full to the BIA for further factfinding on Mr. Thamotar‘s claim that he feared future persecution based on “his Tamil ethnicity alone or in conjunction with his status as a failed asylum seeker.” Id. at 504. We granted the motion and remanded the case to the BIA for further proceedings as outlined by the government‘s motion. The BIA in turn remanded the case to the Immigration Judge for further proceedings.
C. Second Removal Hearing and Second Appeal to the BIA and this Court
On remand from the BIA, the Immigration Judge scheduled a second removal hearing. Before the hearing, Mr. Thamotar submitted additional evidence, including news articles and reports indicating that Tamils faced persecution in Sri Lanka based on their ethnicity and status as failed asylum seekers. Mr. Thamotar also filed an updated affidavit from his father, who swore that his first affidavit mistakenly said the attack on Mr. Thamotar‘s wife happened in September, when in fact it occurred on October 10. In addition, Mr. Thamotar submitted his marriage certificate, which showed that he was married on October 24, 2007.
At the hearing, Mr. Thamotar argued that the Immigration Judge should reconsider all issues—including his initial credibility findings—because on remand the BIA did not expressly retain jurisdiction or limit the Immigration Judge‘s inquiry. Mr. Thamotar asserted that the Immigration Judge erred in finding that he was not credible because, among other things, the inconsistent dates about the attack on his wife were the result of his father‘s mistake, which his father corrected in an updated affidavit. Mr. Thamotar also directed the Immigration Judge to his evidence showing that there is an established pattern or practice of persecution against Tamil failed asylum seekers in Sri Lanka.
The Immigration Judge issued a written decision denying Mr. Thamotar asylum as a matter of discretion but granting him withholding of removal. The Immigration
In denying asylum, the Immigration Judge incorporated his previous findings regarding Mr. Thamotar‘s credibility and testimony. Additionally, the Immigration Judge concluded that the fact that Mr. Thamotar was granted withholding of removal and thus would not face future persecution in Sri Lanka weighed against granting him asylum as a matter of discretion.
Mr. Thamotar appealed the decision to the BIA. He argued that the Immigration Judge erred by not revisiting his initial adverse credibility determination, by relying on his failure to seek asylum in other countries he traveled through, and by failing to reconsider the impact the discretionary denial of asylum after granting withholding of removal would have on his ability to reunite with his family, as required by
The BIA affirmed the Immigration Judge‘s discretionary denial of asylum, concluding that the Immigration Judge did not err by relying on three negative equities—that Mr. Thamotar was not credible, that he did not seek asylum in the countries he traveled through, and that he was entitled to withholding of removal—to support its decision.
As relevant to this appeal, the BIA concluded that the Immigration Judge‘s failure to reconsider its discretionary denial of asylum under
Mr. Thamotar timely appealed to this Court.
II. DISCUSSION
The issues this appeal raises are first, whether we have jurisdiction under the Immigration and Nationality Act (“INA“) and Article III of the United States Constitution to consider Mr. Thamotar‘s petition, and second, whether the agency properly reconsidered the discretionary denial of asylum under
A. Jurisdiction
Before addressing the merits of Mr. Thamotar‘s arguments, we must first determine whether we have jurisdiction to consider them. See Williams v. Chatman, 510 F.3d 1290, 1293 (11th Cir. 2007). We review questions of subject matter jurisdiction
Whether we have jurisdiction to review an order denying asylum but granting withholding of removal is an issue of first impression in this Court, so we ordered the parties to submit supplemental briefing to address this question. We agree with the parties that we have jurisdiction to review Mr. Thamotar‘s petition under the INA because the petition seeks review of a “final order of removal.”
1. Jurisdiction Under INA
The INA limits our jurisdiction to “final order[s] of removal.”
Whether an order granting withholding of removal constitutes a final order of removal subject to judicial review under
(concluding, where asylum was denied but withholding of removal was granted, the order was final because it found petitioners removable even if it did not order them removed); see also Sathanthrasa v. Att‘y Gen., 968 F.3d 285, 292 (3d Cir. 2020) (stating that the Court had jurisdiction where asylum was denied but withholding of removal was granted); Zuh v. Mukasey, 547 F.3d 504, 506 (4th Cir. 2008) (same); Gulla v. Gonzales, 498 F.3d 911, 913 (9th Cir. 2007) (same).
An order granting a noncitizen withholding of removal is a final order of removal because an Immigration Judge must issue an order of removal before granting withholding. Matter of I-S- & C-S-, 24 I. & N. Dec. 432, 433-34 (B.I.A. 2008). As a matter of logic, “to withhold removal there must first be an order of
2. Jurisdiction Under Article III—Mootness
We must now determine whether Mr. Thamotar‘s petition for review of the denial of asylum presents a live controversy under Article III of the Constitution given that he received withholding of removal and so will not be removed to Sri Lanka. See Yunker v. Allianceone Receivables Mgmt., Inc., 701 F.3d 369, 372 (11th Cir. 2012) (explaining that Article III “limits the jurisdiction of the federal courts to actual cases and controversies” (internal quotation marks omitted)). A case that “no longer presents a live controversy with respect to which the court can give meaningful relief” is moot and thus nonjusticiable. Christian Coal., 662 F.3d at 1189 (internal quotation marks omitted). Put differently, we lack authority to “declare principles or rules of law which cannot affect the matter in issue in the case before [us].” Id. (internal quotation marks omitted).
Mr. Thamotar‘s petition presents a live controversy, and is therefore not moot, because asylum status affords more benefits than withholding of removal. See Viracacha, 518 F.3d at 514 (listing differences between asylum and withholding of removal). For instance, an asylum holder generally is permitted to remain in the United States until he no longer has a well-founded fear of persecution in his home country because of a fundamental change in circumstances.
To sum up, “asylum status is more valuable to [a noncitizen] than withholding of removal.” Viracacha, 518 F.3d at 514. In
Thamotar‘s wife and three children might be eligible to join him here as derivative asylees, and he could travel abroad with the government‘s consent.
Having determined that we have jurisdiction to entertain Mr. Thamotar‘s petition, we proceed to review the petition‘s merits.
B. Merits
1. Standard of Review
We review only the BIA‘s decision, except where the BIA expressly adopts or explicitly agrees with the Immigration Judge‘s opinion. Lukaj v. U.S. Att‘y Gen., 953 F.3d 1305, 1311 (11th Cir. 2020). In such cases, we review the Immigration Judge‘s opinion to the extent the BIA found that the Immigration Judge‘s reasons were supported by the record, and we review the BIA‘s decision with regard to those matters on which it rendered its own opinion and reasoning. See Seck v. U.S. Att‘y Gen., 663 F.3d 1356, 1364 (11th Cir. 2011).
We review the BIA and Immigration Judge‘s legal conclusions de novo. Kazemzadeh v. U.S. Att‘y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009). We review factual findings under the substantial evidence test, which requires us to affirm the agency‘s factual findings so long as they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Lingeswaran v. U.S. Att‘y Gen., 969 F.3d 1278, 1286 (11th Cir. 2020) (internal quotation marks omitted). We view the record evidence in the light most favorable to the agency‘s decision and draw all reasonable inferences in its favor. Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc). Thus, a finding of fact will be reversed “only when the record compels a reversal.” Id.
Although we have never had the occasion to apply it in a published opinion, the standard of review for a discretionary denial of asylum is set out in
2. Mr. Thamotar‘s Claim that the Agency Failed to Comply with 8 C.F.R. § 1208.16(e)
The central question raised in this appeal is whether, after Mr. Thamotar was granted withholding of removal, the agency failed to reconsider its discretionary denial of asylum as required by
a. Unlike Withholding of Removal, Asylum is a Discretionary Form of Relief.
To obtain withholding of removal, a noncitizen must show that if returned to his home country, his “life or freedom would be threatened in that country because of [his] race, religion, nationality, membership in a particular social group, or political opinion.”
In contrast to withholding of removal, the agency‘s decision to grant or deny asylum is discretionary. Sepulveda, 401 F.3d at 1230-31;
Although the decision to grant asylum to an eligible applicant rests in the agency‘s discretion, this discretion is not unlimited. The BIA has established some limitations on an Immigration Judge‘s discretion to deny asylum to refugees who have established their eligibility. Specifically, the BIA has stated that once an applicant has established eligibility, the discretionary decision to grant asylum must be based on the “totality of the circumstances,” which involves balancing adverse factors against favorable ones. Matter of Pula, 19 I. & N. Dec. 467, 473 (B.I.A. 1987), superseded in other part by regulation as recognized in Andriasian v. INS, 180 F.3d 1033, 1043-44 & n.17 (9th Cir. 1999). Among other factors, immigration judges should consider whether the noncitizen passed through other countries before arriving in the United States, whether orderly refugee procedures were available to him in any country he passed through, whether he engaged in fraud, and whether general humanitarian considerations favor granting asylum, such as age or poor health. Matter of Pula, 19 I. & N. Dec. at 473-74; see also Matter of A-H-, 23 I. & N. Dec. 774, 782-83 (A.G. 2005) (evaluating an applicant‘s individualized equities and adverse factors before denying asylum in the exercise of discretion); Matter of H-, 21 I. & N. Dec. 337, 347-48 (B.I.A. 1996).
1996) (“Our caselaw also recognizes that general humanitarian reasons ... such as [an applicant‘s] age, health, or family ties, should also be considered in the exercise of discretion.“). These precedential agency decisions “are binding on ... immigration judges” and cabin the scope of their discretion to grant or deny asylum to an otherwise eligible applicant.
b. Where an Applicant is Denied Asylum in the Exercise of Discretion but Granted Withholding of Removal, Section 1208.16(e) Requires Reconsideration of the Discretionary Denial.
Where an applicant proves he is eligible for asylum, a discretionary denial is “exceedingly rare,” and is “even more rare when the [Immigration Judge] or BIA has found the applicant entitled to withholding of removal.” Sathanthrasa, 968 F.3d at 296 (internal quotation marks omitted). In the rare event that an applicant is granted withholding of removal but denied asylum as a matter of discretion, federal regulations require the agency to reconsider the discretionary denial of asylum.
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, 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.
Id.10 This Court has had no occasion to interpret or apply
Section 1208.16(e) is concerned with the issue of family unification, recognizing that granting an applicant withholding of removal but denying him asylum “effectively preclud[es] admission of the applicant‘s spouse or minor children following to join him.”
The regulation‘s mandate is clear, but the scope of the required reconsideration is less evident. Specifically, the regulation fails to explain whether, on reconsideration, the agency must reweigh the “totality of the circumstances,” Matter of Pula, 19 I. & N. Dec. at 473, or it must address only the factor of reasonably available alternatives for family reunification. Nor does the regulation identify who—the Immigration Judge or the BIA—must do the reconsidering. See Shantu v. Lynch, 654 F. App‘x 608, 614 (4th Cir. 2016) (unpublished). We turn now to these two open questions.
i. Section 1208.16(e) Requires Reconsideration of the Factors Weighing For and Against Asylum.
Regarding the level of reconsideration required by
Finding these decisions persuasive, we conclude that
ii. Section 1208.16(e) Requires the Immigration Judge to Reconsider the Discretionary Denial of Asylum.
Although no court has determined who—the Immigration Judge or the BIA—must reconsider the asylum denial under
We agree that when an applicant is denied asylum in the exercise of discretion but granted withholding of removal and the Immigration Judge fails to reconsider its discretionary denial of asylum under
c. The Immigration Judge Failed to Reconsider the Discretionary Denial of Asylum, and the BIA Erred in Failing to Remand.
Applying the above principles to this case, we conclude that the Immigration Judge failed to reconsider his discretionary denial of asylum as required by
The Immigration Judge was required to reconsider the discretionary denial of asylum after granting Mr. Thamotar withholding of removal based on his finding that Mr. Thamotar was more likely than not to face persecution if returned to Sri Lanka.
The Immigration Judge‘s conclusory statement that he weighed Mr. Thamotar‘s equities is insufficient reconsideration. Although an Immigration Judge “need not write an exegesis on every contention,” he must nonetheless “announce [his] decision in terms sufficient to enable a reviewing court to perceive that [he] has heard and thought and not merely reacted.” Min Yong Huang v. Holder, 774 F.3d 1342, 1349 (11th Cir. 2014) (internal quotation marks omitted). Here, the Immigration Judge failed to do so: the decision made no mention of
On appeal, the BIA erroneously concluded that it was unnecessary to remand based on the Immigration Judge‘s failure to address family unification because “[t]here is no dispute of fact that [Mr. Thamotar] has a wife and children in Sri Lanka.” AR 10. But Mr. Thamotar‘s family in Sri Lanka would be “preclud[ed]” from “following to join him” because he was denied asylum but granted withholding of removal.
The BIA failed to conduct this inquiry properly because additional information was required to reconsider Mr. Thamotar‘s asylum claim. Thus, the BIA should have remanded the case to the Immigration Judge for further factfinding. See
The government also contends that remand is unnecessary because the BIA was authorized to, and did, review de novo whether Mr. Thamotar‘s case warranted a discretionary grant of asylum. See
IV. CONCLUSION
For these reasons, we grant the petition for review, vacate the BIA‘s decision, and remand to the BIA with instructions to remand to the Immigration Judge for reconsideration of the discretionary denial of asylum.
PETITION FOR REVIEW GRANTED; VACATED AND REMANDED.