CA3 on Withholding: Sathanthrasa v. Atty. Gen.

Sathanthrasa v. Atty. Gen.

"[T]he immigration regulations provide that when a petitioner is denied asylum but then granted withholding, the denial of asylum “shall be reconsidered,” and the factors the immigration judge (IJ) must consider “will include” not only the “reasons for the denial” but also “reasonable alternatives available” to the petitioner for family reunification. 8 C.F.R. § 1208.16(e); accord id. § 208.16(e). Here, Petitioner alleges that the IJ failed to consider those factors and therefore abused his discretion. We 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.

... [T]he explications of the IJ and BIA leave much to be desired. The sole indication that the IJ understood his duty to reconsider a discretionary denial of asylum is the stray footnote stating he had “considered 8 C.F.R. § 208.16(e).” JA 39 n.2. That passing mention does not allow us, as the reviewing court, to determine that he “heard, considered, and decided” the issue. Kalubi, 364 F.3d at 1141 (citation omitted). To the contrary, it leaves us with nothing of substance to review. Cf. Awolesi v. Ashcroft, 341 F.3d 227, 232 (3d Cir. 2003) (“[T]o give meaningful review to the BIA’s decision, we must have some insight into its reasoning.”). The BIA’s opinion is no less concerning: The sole justification for its affirmance was its assertion that the IJ “was aware of the situation and its implications.” JA 8. We do not share that confidence in view of the internal inconsistency of the IJ’s crediting Sathanthrasa’s well-founded fear of persecution for purposes of withholding but not for asylum, the IJ’s explicit refusal to consider family circumstances, and the absence of any indication that the IJ conducted a de novo review of the factors weighing for and against asylum."

[Hats off to Visuvanathan Rudrakumaran!]