Matter Of C-t-l-, Respondent
| Decision Date | 14 September 2010 |
| Docket Number | No. 3697,3697 |
| Citation | 25 I&N Dec. 341 |
| Parties | Matter of C-T-L-, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
FOR RESPONDENT: Jaspreet Kalra Singh, Esquire, New York, New York1
FOR THE DEPARTMENT OF HOMELAND SECURITY: Grace H. Cheung, Assistant Chief Counsel
The "one central reason" standard that applies to asylum applications pursuant to section 208(b)(1)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1)(B)(i) (2006), also applies to applications for withholding of removal under section 241(b)(3)(A) of the Act, 8 U.S.C. § 1231(b)(3)(A) (2006).
MALPHRUS, Board Member:
In a decision dated October 5, 2006, an Immigration Judge denied the respondent's applications for asylum, withholding of removal, and protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988) ("Convention Against Torture"), and ordered him removed from the United States. We dismissed the respondent's appeal from that decision on January 7, 2008. The matter is now before us on remand from the United States Court of Appeals for the Ninth Circuit. Both parties andamici curiae have filed briefs.3 The respondent's appeal will again be dismissed.
The respondent is a native and citizen of Brazil who was admitted to the United States as a nonimmigrant visitor in 1995. He was served with a Notice to Appear (Form I-862) dated January 24, 2006, charging him with marriage fraud under section 237(a)(1)(G)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(G)(i) (2006). At proceedings before the Immigration Judge on June 28, 2006, the respondent conceded removability and applied for asylum, withholding of removal under section 241(b)(3)(A) of the Act, 8 U.S.C. § 1231(b)(3)(A) (2006), and protection under the Convention Against Torture. Accordingly, these proceedings are governed by the provisions of the REAL ID Act of 2005, Division B ofPub. L. No. 109-13, 119 Stat. 302 ("REAL ID Act"). See Matter of S-B-, 24 I&N Dec. 42 (BIA 2006).
The respondent sought relief based on three separate incidents. First, he expressed a fear of a former employer, a businessman and politician whom the respondent had criticized during the 1980s for the employer's involvement in the death of an American citizen. Second, after the respondent had relocated during the early to mid-1990s, he was involved in the business of registering automobiles with a government agency and was approached by police officers to participate in a blackmail scheme. The respondent reported the officers' scheme to the authorities, who disciplined and suspended the rogue officers for 2 months, and he later appeared on television to expose the officers' wrongdoings. Third, while in the United States, after being solicited by a drug dealer to engage in illegal activities, the respondent assisted law enforcement authorities in apprehending the dealer.
The Immigration Judge found the respondent to be credible, but she denied his application for asylum because he failed to file for relief within a year after the date of his arrival in the United States, as required by section 208(a)(2)(B) of the Act, 8 U.S.C. § 1158(a)(2)(B) (2006). The respondent demonstrated no changed or extraordinary circumstances to excuse the delay. See section 208(a)(2)(D) of the Act; 8 C.F.R. §§ 1208.4(a)(4), (5) (2010). In addition, the Immigration Judge denied the respondent's request for withholding of removal, also referred to as restriction from removal, finding that he did not show that there was a nexus between the harm he fears and one of the protected grounds specified in the Act. Finally, the Immigration Judgedetermined that the respondent did not establish that he should be granted protection under the Convention Against Torture.
In dismissing the respondent's appeal, we stated that he was unable to demonstrate that either his political opinion or his membership in a particular social group was a "central reason" for any feared persecution, as required by section 208(b)(1)(B)(i) of the Act. On November 19, 2008, the Ninth Circuit granted the Government's unopposed motion to remand these proceedings to determine whether section 208(b)(1)(B)(i) applies to applications for withholding of removal under section 241(b)(3)(A).
In the motion, the parties acknowledged that although the respondent did not contest the applicability of the REAL ID Act to his request for withholding of removal, there was no developed or meaningful discussion by the parties addressing the applicability of the "one central reason" standard to withholding of removal claims. Thus, the record was remanded for us to "bring [our] expertise to bear upon the matter... through informed discussion and analysis." INS v. Orlando Ventura, 537 U.S. 12, 17 (2002).
Section 208(b)(1)(A) of the Act provides that a "refugee" is eligible for asylum. That term is defined in section 101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42) (2006), as including a person who has been persecuted or who has a well-founded fear of persecution "on account of race, religion, nationality, membership in a particular social group, or political opinion." See also INS v. Cardoza-Fonseca, 480 U.S. 421, 423 (1987). An alien who demonstrates past persecution or a well-founded fear of future persecution is eligible for asylum, subject to a discretionary determination. Id. at 423, 428 nn. 5-6. This standard is a broader one than that used to demonstrate eligibility for withholding of removal. Id. at 423-24.
Eligibility for withholding of removal requires a showing that the alien's life or freedom would be threatened "because of... race, religion, nationality, membership in a particular social group, or political opinion." Section 241(b)(3)(A) of the Act. Thus, to establish eligibility for withholding of removal, an alien must show that there is a clear probability of persecution, or stated differently, that it is more likely than not that he or she would be subject to persecution. INS v. Stevic, 467 U.S. 407, 424 & n.19 (1984). We view the "clear probability" standard to be equivalent to, and interchangeable with, the "more likely than not" standard for purposes of withholding of removal. See id. at 429-30. See generally 8 C.F.R. §§ 208.16(b), 1208.16(b) (2010).
The REAL ID Act amended section 208(b)(1) of the Act by addressing the required burdens of proof. One of the amendments provides that an asylum applicant must "establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason" for the persecution. Section 208(b)(1)(B)(i) of the Act (emphasis added). We apply this standard in asylum proceedings to so-called "mixed motive" cases. Matter of J-B-N-& S-M-, 24 I&N Dec. 208 (BIA 2007).4
The REAL ID Act amendments also addressed other burden of proof issues concerning credibility and corroboration. See sections 208(b)(1)(B)(ii), (iii) of the Act. Section 241(b)(3)(C) of the Act explicitly states that these amendments apply to applications for withholding of removal:
In determining whether an alien has demonstrated that the alien's life or freedom would be threatened for a reason described in subparagraph (A), the trier of fact shall determine whether the alien has sustained the alien's burden of proof, and shall make credibility determinations, in the manner described in clauses (ii) and (iii) of section 208(b)(1)(B).
However, the Act does not expressly provide whether the "one central reason" standard in section 208(b)(1)(B)(i) of the Act applies in the context of withholding of removal. Thus, this matter has been remanded for us to determine the appropriate burden of proof standard for withholding of removal applications. See Negusie v. Holder, 129 S. Ct. 1159, 1164 (2009).
In deciding this issue, we employ settled principles of statutory construction. "Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case." Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). Issues regarding whether the language is plain and unambiguous are "determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Id. at 341. Thus, we first "look to the particular statutory language at issue." K-Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988).
Section 241(b)(3)(C) of the Act specifically addresses "burden of proof and "credibility determinations" and does so by cross-referencing, and thus incorporating, sections 208(b)(1)(B)(ii) and (iii) of the Act. However, section 241(b)(3)(C) does not expressly cross-reference section 208(b)(1)(B)(i), which, as noted above, was also part of the amendments made by the REAL ID Act and set forth the "one central reason" standard. Thus, section 241(b)(3)(C) is silent regarding whether that standard is applicable to withholding of removal claims.
The respondent contends that Congress's failure to expressly make the "one central reason" standard applicable to the withholding of removal provision must mean that it did not intend for that standard to apply. However, in statutory construction, "silence is not conclusive." Negusie v. Holder, 129 S. Ct. at 1164. We are instructed not to view the language of statutory...
To continue reading
Request your trial