Thamotar v. U.S. Attorney Gen., 19-12019

1 F.4th 958

Visavakumar THAMOTAR, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 19-12019

United States Court of Appeals, Eleventh Circuit.

June 17, 2021

Visuvanathan Rudrakumaran, Law Office of Visuvanathan Rudrakumaran, NEW YORK, NY, for Petitioner.

Gregory Michael Kelch, U.S. Department of Justice, Civil Division, WASHINGTON, DC, Michelle M. Ressler, District Counsel's Office, USICE, MIAMI, FL, for Respondent.

Before WILSON, JILL PRYOR and LAGOA, Circuit Judges.

JILL PRYOR, Circuit Judge:

Visavakumar Thamotar, a Sri Lankan citizen of Tamil ethnicity, seeks review of the Board of Immigration Appeals’ ("BIA") order affirming an Immigration Judge's discretionary denial of his application for asylum and grant of withholding of removal. Mr. Thamotar argues that because removal was withheld, federal regulation 8 C.F.R. § 1208.16(e)¹ required reconsideration of his asylum claim, which the Immigration Judge and BIA failed to give. We agree with Mr. Thamotar that the agency failed to conduct the proper reconsideration. When an asylum applicant is denied asylum but granted withholding of removal, 8 C.F.R. § 1208.16(e) requires reconsideration anew of the discretionary denial of asylum, including addressing reasonable alternatives available to the petitioner for family reunification.² And where the Immigration Judge has failed to do so, the BIA must remand for the Immigration Judge to conduct the required reconsideration.

Here, the Immigration Judge failed to reconsider Mr. Thamotar's asylum claim under § 1208.16(e). The BIA's failure to remand on this issue was therefore manifestly contrary to law and an abuse of discretion. It is clear that neither the Immigration Judge nor the BIA conducted the proper reconsideration because the record contained no information about Mr. Thamotar's ability to reunite with his family, information that the agency must review under § 1208.16(e). Thus, the BIA should have remanded the case for further factfinding. We grant the petition, vacate the BIA's order, and remand to the BIA with instructions to remand to the Immigration Judge for reconsideration of the discretionary denial of asylum.

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 because of his Tamil ethnicity. Mr. Thamotar said he was transporting passengers in his taxi van when he stopped at a military check point. At the checkpoint, army officers discovered he was Tamil and accused him of being part of the Liberation Tigers of Tamil Eelam (the "LTTE").³ The officers arrested him, beat him, and took him to a camp where they continued to beat and interrogate 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. 8 U.S.C. § 1182(a)(7)(A)(i)(I). At a master calendar hearing, Mr. Thamotar admitted the allegations in the notice to appear and conceded removability. The Immigration Judge determined that Mr. Thamotar was removable.

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 8 C.F.R. § 1208.16(e) )).

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 Judge granted Mr. Thamotar withholding of removal because he w...