Sathanthrasa v. Attorney Gen. U.S.

• Decision Date: 30 July 2020
• Docket Number: No. 18-2925,18-2925
• Citation: 968 F.3d 285
• Parties: Santhakumar SATHANTHRASA, Petitioner v. ATTORNEY GENERAL UNITED STATES of America
• Court: U.S. Court of Appeals — Third Circuit

968 F.3d 285

Santhakumar SATHANTHRASA, Petitioner

v.ATTORNEY GENERAL UNITED STATES of America

No. 18-2925

United States Court of Appeals, Third Circuit.

Argued January 14, 2020

Opinion filed: July 30, 2020

Visuvanathan Rudrakumaran [Argued], 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

Before: JORDAN, GREENAWAY, JR., and KRAUSE, Circuit Judges

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 of family members as derivative asylees. So the 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).¹

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.

I. FACTUAL BACKGROUND ²

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 "unknown 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 passed without word from his siblings, Sathanthrasa reported the kidnappings to the Human Rights Commission. He did not ascribe blame to the Karuna Group, reporting only that his brothers were kidnapped by "unknown people." JA 113. Nonetheless, he faced swift retribution.

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 indigenous 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 "where his son was" and responding that Sathanthrasa "had gone to work and ... [would] not come back." JA 117–18. Eventually, the attackers left with the warning that once Sathanthrasa returned, he "should stay here without going anywhere, and [they] will come back." JA 118.

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 commonplace, 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.

II. PROCEDURAL HISTORY

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 withholding, he declined to consider Sathanthrasa's application for CAT protection.

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 8 C.F.R. § 1208.16(e) —which provides that a denial of asylum "shall be reconsidered" when "an applicant is denied asylum solely in the exercise of discretion ... [and] is subsequently granted withholding of ... removal under this section, thereby effectively precluding admission of the applicant's spouse or minor children following to join him or her"—the BIA was explicit that if the denial was discretionary, the IJ was required to reconsider his asylum ruling, taking into account the "reasons for the denial" and "reasonable alternatives available to the applicant such as reunification with the spouse or minor children in a third country." JA 45 (citing 8 C.F.R. § 1208.16(e) ).

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 because 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 8 C.F.R. § 208.16(e) in this regard." JA 39...