Shantu v. Lynch

• Decision Date: 13 July 2016
• Docket Number: No. 15-1175,15-1175
• Parties: DANIEL GEMECHU SHANTU, Petitioner, v. LORETTA E. LYNCH, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

DANIEL GEMECHU SHANTU, Petitioner,
v.
LORETTA E. LYNCH, Attorney General, Respondent.

No. 15-1175

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: March 24, 2016
July 13, 2016

UNPUBLISHED

On Petition for Review of an Order of the Board of Immigration Appeals.

Before KING, DIAZ, and HARRIS, Circuit Judges.

Petition for review granted; vacated and remanded by unpublished opinion. Judge Harris wrote the opinion, in which Judge King and Judge Diaz joined.

ARGUED: Alan M. Parra, LAW OFFICE OF ALAN M. PARRA, Silver Spring, Maryland, for Petitioner. Rachel Louise Browning, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Blair O'Connor, Assistant Director, Civil Division, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

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PAMELA HARRIS, Circuit Judge:

When an alien's application for asylum is denied on discretionary grounds but the same alien is granted withholding of removal, 8 C.F.R. § 1208.16(e) provides that "the denial of asylum shall be reconsidered," in light of certain enumerated factors. Petitioner Daniel Gemechu Shantu finds himself in precisely this position, and he contends that the Board of Immigration Appeals ("BIA" or "Board") has not reconsidered his asylum application as required by the regulation. Shantu filed a motion for reconsideration with the BIA on that basis, which the agency denied.

We agree that Shantu's asylum claim has not yet received reconsideration under 8 C.F.R. § 1208.16(e), and, for that reason, we find that the BIA abused its discretion when it denied Shantu's motion. Accordingly, we vacate the Board's decision and remand this matter to the agency.

I. A.

Petitioner Shantu is a native and citizen of Ethiopia. Shantu was persecuted in his home country on account of his Oromo ethnicity and his religion, and he was subjected to multiple detentions, beatings, and arrests.

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Traveling on a student visa, Shantu left Ethiopia in August of 2004 to attend a graduate program in theology in Norway. He returned to Ethiopia about a year later to do research related to his degree and to marry his fiancée, who was still living in the country. At Shantu's wedding on October 15, 2005, a family friend who was also an opposition leader made a speech that touched on political issues. Shantu and his wife were arrested eleven days later, and although Shantu's wife was soon released, Shantu was detained, tortured, and beaten until December 5, 2005.

Shantu and his wife immediately left Ethiopia for Norway, departing on December 8, 2005. Shantu's wife traveled on a "family reunification visa," which Shantu had obtained for her before leaving Norway. But Shantu left Norway again on July 20, 2006, before completing his degree, to come to the United States. He was admitted to the United States on a nonimmigrant business visitor visa, which he overstayed. Shantu submitted a timely application for asylum, withholding of removal, and Convention Against Torture ("CAT") protection.

Shantu's wife visited him in the United States in 2007, and he has not seen her since. On April 7, 2008, she gave birth to their son, whom Shantu has never met. Shantu's wife became a student in Norway and remained there on a student visa, which,

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according to Shantu, has now expired. Shantu has never applied for asylum in Norway.

B.

To be eligible for asylum in the United States, an applicant must establish that he is a "refugee," 8 U.S.C. § 1158(b)(1)(A) — that is, that he is unwilling or unable to return to his country of citizenship "because of persecution or a well-founded fear of persecution on account of" a protected characteristic like religion or "membership in a particular social group," id. § 1101(a)(42). Even then, however, a refugee is only "'eligible for asylum,' which the Attorney General (or his or her designee) 'in his [or her] discretion' may grant." Zuh v. Mukasey, 547 F.3d 504, 507 (4th Cir. 2008) (alteration and emphasis in original) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 443 (1987)); see 8 U.S.C. § 1158(b)(1)(A).

Discretionary denials of asylum are "'exceedingly rare' and are generally based on egregious conduct by the applicant." Zuh, 547 F.3d at 507 (quoting Huang v. INS, 436 F.3d 89, 92 (2d Cir. 2006)). "The exercise of discretionary judgment with respect to a refugee's asylum claim," we have explained, "should include the examination of 'a totality of the circumstances' in view of the BIA's policy that '[t]he danger of persecution will outweigh all but the most egregious of adverse factors.'" Dankam v. Gonzales, 495 F.3d 113, 119 n.2 (4th Cir. 2007)

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(alteration and emphasis in original) (quoting Huang, 436 F.3d at 98). In Zuh, we articulated a non-exhaustive list of factors to be balanced as part of the consideration of the "totality of the circumstances." 547 F.3d at 510-11. "On the positive side," we explained, an IJ should weigh:

1) Family, business, community, and employment ties to the United States, and length of residence and property ownership in this country;

2) Evidence of hardship to the alien and his family if deported to any country, or if denied asylum such that the alien cannot be reunited with family members (as derivative asylees) in this country;

3) Evidence of good character, value, or service to the community, including proof of genuine rehabilitation if a criminal record is present;

4) General humanitarian reasons, such as age or health;

5) Evidence of severe past persecution and/or well-founded fear of future persecution, including consideration of other relief granted or denied the applicant (e.g., withholding of removal or CAT protection).

Id. at 511. And "[o]n the negative side," an IJ should consider the:

1) Nature and underlying circumstances of the exclusion ground;

2) Presence of significant violations of immigration laws;

3) Presence of a criminal record and the nature, recency, and seriousness of that record, including evidence of recidivism;

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4) Lack of candor with immigration officials, including an actual adverse credibility finding by the IJ;

5) Other evidence that indicates bad character or undesirability for permanent residence in the United States.

Id. We emphasized that "an IJ need not analyze or even list" every one of the enumerated factors, "[b]ut at the very least, an IJ must demonstrate that he or she reviewed the record and balanced the relevant factors" and must also "discuss the positive or adverse factors that support his or her decision." Id. (emphasis in original).

As rare as a discretionary denial of asylum may be, it is "even more rare" when the same applicant is granted withholding of removal. Id. at 507. That is because withholding of removal requires a more demanding showing than asylum: The applicant must establish by the preponderance of the evidence that his "life or freedom would be threatened" on account of a protected characteristic if he were deported to his home country. See 8 U.S.C. § 1231(b)(3)(A); Zuh, 547 F.3d at 507 & n.2. If the applicant makes this showing, the government must withhold deportation. 8 U.S.C. § 1231(b)(3)(A). But unlike an award of asylum, withholding of removal does not permit the applicant to become a lawful permanent resident or to bring his family to the United States, and it leaves him "subject to deportation to a willing third country." Zuh, 547 F.3d at 508 (citing Huang, 436

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F.3d at 95). For that reason, we have made clear that a discretionary denial of asylum coupled with a grant of withholding of removal leaves an applicant in an "unusual legal status" and generally is justified only by especially "egregious negative activity" by the applicant. Id. at 507-08 (citation and internal quotation marks omitted).

Consistent with this understanding, the regulation at 8 C.F.R. § 1208.16(e)¹ — upon which we relied in Zuh, 547 F.3d at 510 — "provide[s] special and unusual rights to an alien who has been denied asylum" on discretionary grounds but granted withholding of removal, Huang, 436 F.3d at 92. Specifically, 8 C.F.R. § 1208.16(e) states:

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.

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The application of this regulation to Shantu's case is at issue here.

C.

Shantu's application for asylum, withholding of removal, and CAT protection was referred to immigration court, and Shantu appeared before an Immigration Judge ("IJ") in Baltimore, Maryland. Shantu admitted that he was a removable alien and presented three witnesses, as well as his own testimony, in support of his claims.

On August 2, 2007, the IJ issued a decision denying Shantu's application for asylum but granting him withholding of removal.² The IJ found the testimony of Shantu and his three witnesses credible and concluded that Shantu had suffered past persecution and possessed a well-founded fear of future persecution. He also found that Shantu had not been "firmly resettled" in Norway. J.A. 127. But despite the fact that Shantu was eligible for asylum, the IJ denied Shantu's asylum application in an exercise of discretion.

The IJ based the discretionary denial of asylum on two factors. First, the IJ found that Shantu had engaged in "forum shopping" by "com[ing] to the United States seeking asylum in

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this nation rather than seeking protection" in Norway, where "he clearly was permitted to be." J.A. 127. The IJ...