Santhakumar Sathanthrasa v. Attorney General United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 18-2925

_______________

SANTHAKUMAR SATHANTHRASA,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

________________

On Petition for Review

from the Board of Immigration Appeals

(BIA No. A209-240-315)

Immigration Judge: Walter A. Durling

________________

Argued January 14, 2020

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

Circuit Judges

(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

__________

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

2

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 BACKGROUND2

Petitioner Santhakumar Sathanthrasa is a citizen of Sri

Lanka, a country whose modern history has been marked by

1

8 C.F.R. §§ 208.16(e) and 1208.16(e) are identical

provisions, the latter of which applies to the BIA. See Huang

v. INS, 436 F.3d 89, 90 n.1 (2d Cir. 2006). The parties used

these provisions interchangeably throughout the briefing, but

for concision and consistency we will refer only to

§ 1208.16(e).

2

Sathanthrasa is entitled to “a rebuttable presumption of

credibility on appeal,” 8 U.S.C. § 1158(b)(1)(B)(iii), because

although the IJ indicated that he was not “overly enamored

3

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

with the respondent’s testimony,” JA 75, he declined to make

an adverse credibility determination.

3

Peaking in the late 2000s and continuing through most of

the next decade, abductions of Tamils and political dissidents

by individuals in white vans became such a widespread

practice in Sri Lanka that victims were said to be “white

vanned,” and the culture of violence became known as a “white

van culture.” JA 383–84; see also Brief of Professors of Sri

4

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

Lankan Politics as Amici Curiae in Support of Respondent at

8–9, DHS v. Thuraissigiam, No. 19-161 (U.S. Jan. 22, 2020),

2020 WL 402612.

5

“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.

6

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

7

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 n.2.

8

So Sathanthrasa again appealed. This time the BIA

dismissed his petition, asserting that “the only positive factors

[he had] identified were: (1) that his grant of withholding of

removal was not as beneficial to him as asylum; and, (2) that

Tamils have suffered a genocide.” JA 8. By way of reasoning,

the BIA stated only that the IJ “was aware of the situation and

its implications” and that it was “declin[ing] to disturb the

[IJ’s] decision” because Sathanthrasa “ha[d] not identified

error in the factors considered.” Id. Sathanthrasa timely

petitioned this Court for review.

III. JURISDICTION AND STANDARD OF REVIEW

The BIA had jurisdiction pursuant to 8 U.S.C. § 1103 and

8 C.F.R. § 1003.1(b), and we have jurisdiction pursuant to

8 U.S.C. § 1252(a). We review the IJ’s decision “where the

BIA has substantially relied on that opinion,” S.E.R.L. v. Att’y

Gen., 894 F.3d 535, 543 (3d Cir. 2018) (quoting Camara v.

Att’y Gen., 580 F.3d 196, 201 (3d Cir. 2009)), and where the

BIA has adopted the IJ’s decision and conducted its own

analysis, “we review both the IJ’s and the BIA’s decisions,” id.

(quoting Ordonez-Tevalan v. Att’y Gen., 837 F.3d 331, 341 (3d

Cir. 2016)).

We review a discretionary denial of asylum for abuse of

discretion, Huang v. Att’y Gen., 620 F.3d 372, 379 (3d Cir.

2010) (citing 8 U.S.C. § 1252(b)(4)(D)), and we will remand if

the decision was “arbitrary, irrational, or contrary to law,”

Tilija v. Att’y Gen., 930 F.3d 165, 170 (3d Cir. 2019) (citation

omitted).

9

IV. DISCUSSION

Because the Government does not contest that Sathanthrasa

established both a well-founded fear of future persecution and

eligibility for withholding of removal, the sole issue before us

is whether the IJ failed to properly reconsider his discretionary

denial of asylum as mandated by 8 C.F.R. § 1208.16(e).4 To

resolve this issue we address briefly the factors that guide a

reconsideration of the discretionary denial of asylum under

§ 1208.16(e) before reviewing the decision of the IJ in this

case.

A. Reconsideration of a discretionary denial of

asylum

In full, § 1208.16(e) provides:

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,

4

Some circuits have explored the question of whether the

BIA itself may conduct the required reconsideration, see, e.g.,

Huang, 436 F.3d at 93, but the BIA itself seems to require

remand to the IJ, see In re T-Z-, 24 I. & N. Dec. 163, 176 (BIA

2007). In any event, given the nature of the fact-finding at

issue here, as well as the BIA’s prior remand to the IJ for the

reconsideration mandated by § 1208.16(e), we will remand

with instructions that the Board follow that same procedure

again.

10

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.

8 C.F.R. § 1208.16(e); accord id. § 208.16(e).5

5

In December 2019, the Department of Homeland Security

issued a proposed rule that would eliminate both 8 C.F.R.

§§ 1208.16(e) and 208.16(e). Procedures for Asylum and Bars

to Asylum Eligibility, 84 Fed. Reg. 69640-01 (proposed Dec.

19, 2019) (to be codified at 8 C.F.R. pts. 208, 1208). Because

“administrative rules will not be construed to have retroactive

effect unless their language requires this result,” Bowen v.

Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988)—and as

the Government conceded at argument, the proposed rule

contains no language stating that it will apply retroactively—

and because rules that “alter existing rights or obligations” may

apply only prospectively, see Appalachian States Low-Level

Radioactive Waste Comm’n v. O’Leary, 93 F.3d 103, 113 (3d

Cir. 1996); see also 5 U.S.C. § 551(4) (agency rules may have

only “future effect”)); see Levy v. Sterling Holding Co., 544

F.3d 493, 506 (3d Cir. 2008), the proposed rule would apply

only prospectively and would not control Sathanthrasa’s

appeal. Notably, however, the proposed rule also makes clear

that family unification is, and would remain, a “crucial factor

in weighing asylum as a discretionary matter.” Procedures for

11

As our sister circuits have recognized, it is both logical and

reasonable that reconsideration of asylum is mandatory for a

petitioner in this “unusual legal status.” Zuh v. Mukasey, 547

F.3d 504, 508 (4th Cir. 2008) (quoting Huang, 436 F.3d at 95).

That is because the petitioner has more than satisfied the “well-

founded fear of persecution” standard required for asylum by

qualifying for withholding of removal. Ghebrehiwot v. Att’y

Gen., 467 F.3d 344, 351 (3d Cir. 2006) (quoting 8 U.S.C.

§ 1101(a)(42)). At the same time, however, having won only

withholding of removal, that same petitioner will be “ineligible

to become a lawful permanent resident here, unable to reunite

his family as derivative asylees, and subject to deportation to a

willing third country.” Zuh, 547 F.3d at 508.

To understand what is required on reconsideration under

§ 1208.16(e), we must begin with what is required in the

normal course. For while an IJ’s reconsideration of asylum

under § 1208.16(e) may be mandatory, the granting of asylum

is not. Serrano-Alberto v. Att’y Gen., 859 F.3d 208, 214 (3d

Cir. 2017). To be sure, a petitioner seeking asylum must

establish statutory eligibility by demonstrating either

“persecution or a well-founded fear of persecution on account

of race, religion, nationality, membership in a particular social

group, or political opinion.” 8 U.S.C. § 1101(a)(42); see id.

§ 1158(b)(1)(A). But statutory eligibility for asylum does not

give rise to a “right to remain in the United States.” INS v.

Cardoza-Fonseca, 480 U.S. 421, 443 (1987) (emphasis

Asylum and Bars to Asylum Eligibility, 84 Fed. Reg. at 69,657

(quoting Fisenko v. Lynch, 826 F.3d 287, 292 (6th Cir. 2016)).

12

omitted). The petitioner must carry her burden of “establishing

that the favorable exercise of discretion is warranted,” Huang,

436 F.3d at 97, and the grant of asylum—ab initio or on

reconsideration—ultimately rests in the Attorney General’s

discretion. Id. at 95; see Serrano-Alberto, 859 F.3d at 214.

But that discretion is not limitless. “[T]he BIA has

established—and federal courts have enforced—extensive

limitations on an IJ’s exercise of discretion.” Huang, 436 F.3d

at 97 (collecting cases). Even on initial consideration of

asylum, the IJ “must examine the totality of the circumstances”

to determine whether a petitioner is entitled to a discretionary

grant of asylum. Id. at 98; accord Zuh, 547 F.3d at 510–11.

Our sister circuits have helpfully set forth a non-exhaustive

list of positive and negative factors that we also adopt today to

guide the IJ’s exercise of discretion in assessing an asylum

application. See, e.g., Huang, 436 F.3d at 98 (collecting cases).

Positive factors include:

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;

13

4) General humanitarian reasons, such as age or

health; [and]

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).

Zuh, 547 F.3d at 511; see also Shahandeh-Pey v. INS, 831 F.2d

1384, 1387 (7th Cir. 1987) (listing positive factors).

Negative factors include:

1) Nature and underlying circumstances of the

exclusion ground;

2) Presence of significant violations of

immigration laws;6

6

We note that while violations of immigration laws are

properly part of the inquiry, see, e.g., In re A-B-, 27 I. & N.

Dec. 316, 345 n.12 (Att’y Gen. 2018), overruled in other part

by Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018), “this

factor itself involves a totality of the circumstances inquiry,”

including whether the violation stemmed from an imminent

need to escape persecution, Zuh, 547 F.3d at 511 n.4; In re

Pula, 19 I. & N. Dec. 467, 472–75 (BIA 1987), superseded in

other part by regulation as recognized in Andriasian v. INS,

180 F.3d 1033, 1043–44 & n. 17 (9th Cir. 1999); see also In re

Kasinga, 21 I. & N. Dec. 357, 368 (BIA 1996).

14

3) Presence of a criminal record and the nature,

recency, and seriousness of that record,

including evidence of recidivism;

4) Lack of candor with immigration officials,

including an actual adverse credibility finding by

the IJ; [and]

5) Other evidence that indicates bad character or

undesirability for permanent residence in the

United States.

Zuh, 547 F.3d at 511 (footnote omitted); see also Shahandeh-

Pey, 831 F.2d at 1388 (listing negative factors).

In weighing these factors and making a discretionary

asylum determination, an IJ need not expressly address every

factor, “[b]ut at the very least, [the] IJ must demonstrate that

he or she reviewed the record and balanced the relevant factors

and must discuss the positive or adverse factors that support

his or her decision.” Zuh, 547 F.3d at 511; see Gulla v.

Gonzales, 498 F.3d 911, 916 (9th Cir. 2007); Huang, 436 F.3d

at 98–99; In re Chen, 20 I. & N. Dec. 16, 19 (BIA 1989). This

explicit requirement of balancing is consonant with the

principle that we may affirm an agency’s decision only on “the

grounds invoked by the agency” and the concomitant rule that

those grounds “must be set forth with such clarity as to be

understandable.” SEC v. Chenery Corp., 332 U.S. 194, 196

(1947); see Wang v. Att’y Gen., 423 F.3d 260, 270 (3d Cir.

15

2005) (same); Dia v. Ashcroft, 353 F.3d 228, 241 (3d Cir.

2003) (en banc) (same).7

These lessons apply to both the original consideration of

asylum and its reconsideration under 8 C.F.R. § 1208.16(e).

But when it comes to reconsideration of a discretionary denial

of asylum under § 1208.16(e), four points bear particular

emphasis.

First, where a petitioner has satisfied the even more

demanding standard for persecution for withholding of

removal, a fortiori she has demonstrated a well-founded fear

of future persecution, and a well-founded fear of persecution

“outweigh[s] all but the most egregious adverse factors.” Zuh,

547 F.3d at 512 (alteration in original) (quoting Huang, 436

F.3d at 98); see Marouf v. Lynch, 811 F.3d 174, 180 (6th Cir.

2016) (cataloging a handful of cases in which “egregious

conduct” justified the “unusual” outcome of a discretionary

denial of asylum (citations omitted)); Kalubi v. Ashcroft, 364

F.3d 1134, 1141 (9th Cir. 2004); Shahandeh-Pey, 831 F.2d at

1388; In re Kasinga, 21 I. & N. Dec. 357, 367 (BIA 1996) (en

banc); In re H-, 21 I. & N. Dec. 337, 348 (1996) (en banc).

That is so even when a petitioner has been granted another

form of relief, such as withholding. See Zuh, 547 F.3d at 512

n.5; Huang, 436 F.3d at 98 n.11. Otherwise, “those very

asylum-seekers who met the higher standard of proof of

persecution required for withholding of removal (and thus

7

The balancing requirement can be satisfied, however, so

long as the IJ sets forth his or her reasoning with sufficient

clarity. Chenery does not command that both the IJ and BIA

expressly set forth their reasoning. Dia, 353 F.3d at 243.

16

those persons most in need of this nation’s asylum relief)

would be the ones who received less protection.” Zuh, 547

F.3d at 512 n.5 (quoting Huang, 436 F.3d at 98 n.11).

Second, in making any discretionary asylum determination,

an IJ should consider “[e]vidence of hardship to the alien and

his family if . . . denied asylum such that the alien cannot be

reunited with family members (as derivative asylees) in this

country.” Zuh, 547 F.3d at 511. But this factor must be

considered on reconsideration of the discretionary denial of

asylum under § 1208.16(e). As the regulation makes clear by

its terms, its primary purpose is to address the fact that “[i]n

the event that an applicant is denied asylum solely in the

exercise of discretion . . . [and] is subsequently granted

withholding of . . . removal,” the discretionary denial of

asylum “thereby effectively preclud[es] admission of the

applicant’s spouse or minor children following to join him or

her.” 8 C.F.R. § 1208.16(e). That is because only an asylee

can petition to have family members enter the United States as

derivative asylees. See 8 U.S.C. § 1158(b)(3)(A). With that

precious possibility at stake, the regulation ensures that

“[f]actors to be considered will include . . . reasonable

alternatives available to the applicant such as reunification

with his or her spouse or minor children in a third country.”

8 C.F.R. § 1208.16(e) (emphasis added).

Third, it is not sufficient on reconsideration for the IJ to

consider and address only the factor of reasonably available

alternatives to family reunification. While that factor carries

significant weight, the IJ must also consider the “reasons for

the denial” of asylum. 8 C.F.R. § 1208.16(e). By mandating

that the IJ consider the “reasons for the denial and reasonable

alternatives” for family reunification in the conjunctive, id.

(emphasis added), the regulation makes clear that a de novo

17

reweighing of the positive and negative factors is required. See

Alimbaev v. Att’y Gen., 872 F.3d 188, 201 (3d Cir. 2017)

(instructing that on remand, the immigration agency must

reconsider the factor on which it erred “before [then] weighing

the various positive and negative factors”). In that reweighing,

moreover, the IJ must pay special attention to the availability

of “reasonable alternatives” for family reunification, 8 C.F.R.

§ 1208.16(e), and to the principle that a well-founded fear of

persecution “outweigh[s] all but the most egregious adverse

factors,” Zuh, 547 F.3d at 512 (alteration in original) (citation

omitted).

Fourth, the need for the IJ to identify and discuss the factors

informing her decision is all the more acute on reconsideration

under § 1208.16(e). “Discretionary denials of asylum are

exceedingly rare,” Huang, 436 F.3d at 92, and are “even more

rare when the IJ or BIA has found the applicant entitled to

withholding of removal,” Zuh, 547 F.3d at 507. For that

reason, they are carefully scrutinized by the Courts of Appeals

and have been vacated where the IJ failed to balance the

relevant factors, see Huang, 436 F.3d at 99; see also

Shahandeh-Pey, 831 F.2d at 1387–90; where the IJ’s

conclusion was internally inconsistent, see Marouf, 811 F.3d

at 190; Zuh, 547 F.3d at 513; or where the IJ failed to provide

sufficient explanation for the reviewing court to determine that

she “heard, considered, and decided” the issue, Kalubi, 364

F.3d at 1141 (citation omitted). In the ordinary course, an IJ is

expected to “demonstrate that he or she reviewed the record

and balanced the relevant factors and [to] discuss the positive

or adverse factors that support his or her decision,” Zuh, 547

F.3d at 511; when reconsidering the discretionary denial of

asylum under § 1208.16(e), a thoughtful balancing and robust

18

discussion is essential both to ensure the IJ’s decision is sound

and to render it capable of meaningful review.

B. Application to the BIA’s and IJ’s opinions

With these principles in mind, we readily conclude that the

IJ here did not properly reconsider his discretionary denial of

asylum under § 1208.16(e) and that the BIA erred in finding it

sufficient that the IJ “was aware of the situation and its

implications,” JA 8.

First, having determined that Sathanthrasa had a well-

founded fear of persecution, the IJ should have considered that

factor to “outweigh[] all but the most egregious adverse

factors.” Zuh, 547 F.3d at 512. Instead, the IJ grounded the

discretionary denial of asylum on Sathanthrasa’s failure to

establish past persecution and his purported “ulterior motive”

for traveling to the United States. JA 39. The IJ made no

mention of the weight to be accorded Sathanthrasa’s well-

founded fear of persecution, nor did he explain how the factors

he identified were sufficiently egregious to outweigh the

credible threat of harm Sathanthrasa faced if returned to Sri

Lanka. See Zuh, 547 F.3d at 512; Huang, 436 F.3d at 98, 100;

Shahandeh-Pey, 831 F.2d at 1388.

Second, family reunification should have been treated as

relevant both to the IJ’s original decision and on his

reconsideration. See 8 C.F.R. § 1208.16(e); Huang, 436 F.3d

at 101; In re T-Z-, 24 I. & N. Dec. 163, 176 (BIA 2007). Yet

on neither occasion was that factor clearly considered. In the

first instance, the IJ stated that he was “not concerned” and

“d[id not] care about” family reunification. JA 138–39. He

even went so far as to assert that family reunification “ha[d]

nothing to do with [his] decision.” JA 139. And on

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reconsideration, even though the BIA remanded with specific

instructions to consider family circumstances, the IJ failed to

mention, much less discuss, family reunification, relegating to

a footnote the cryptic comment that he “ha[d] considered

8 C.F.R. § 208.16(e) in this regard.” JA 39 n.2. That cursory

treatment only reinforces our concern that the IJ indeed treated

family unification as having “nothing to do with [his]

decision,” JA 139. See Zuh, 547 F.3d at 512 (citing Huang,

436 F.3d at 99).

Third, although § 1208.16(e) requires reconsideration of

the “reasons for the denial,” there is no indication in the record

that the IJ engaged in a de novo balancing of factors on

reconsideration. He failed to discuss any positive factors

weighing in favor of asylum, inexplicably ignoring both

Sathanthrasa’s well-founded fear of persecution, which he

credited for purposes of withholding of removal, and the

regulation’s express requirement of consideration of family

reunification. Instead, the IJ recited, almost verbatim, the same

negative factors he originally identified as grounds for his

initial denial of asylum, namely Sathanthrasa’s failure to

establish past persecution and his “ulterior motive” for

traveling to the United States. JA 38–39. The IJ’s treatment

of those negative factors was problematic in and of itself.8 But

8

First, as intervening case law has made clear, violence and

threats of violence must be considered cumulatively for

purposes of assessing past persecution. See Doe v. Att’y Gen.,

956 F.3d 135, 143–44 (3d Cir. 2020); Herrera-Reyes v. Att’y

Gen., 952 F.3d 101, 106–07 (3d Cir. 2020) (collecting cases).

Yet the IJ focused only on the facts that Sathanthrasa had not

been “serious[ly]” injured by the Karuna Group or beaten by

the police and had not suffered further abuse after 2009. JA

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even accepting those factors at face value, the IJ erred in failing

to explain why those factors should be considered among “the

most egregious adverse factors” capable of outweighing not

only Sathanthrasa’s well-founded fear of persecution but also

38. In doing so, the IJ failed to consider the kidnappings of

Sathanthrasa’s three siblings; his father’s beating; his mother’s

testimony that she was held at gunpoint while one of his

brothers was abducted; the threat that he would be killed when

members of the Karuna Group pointed a gun at him and told

him to “run away without turning and looking back,” JA 115;

or the cryptic threat that he should stay at his father’s house

“without going anywhere” because his father’s attackers would

“come back,” JA 118. Second, an adverse credibility

determination is not properly based on an absence of testimony

when “no one ever asked” the petitioner for clarification. See

Li Wu Lin v. INS, 238 F.3d 239, 246 (3d Cir. 2001); see also

Dia, 353 F.3d at 250 (an adverse credibility determination must

be based on “specific, cogent reason[s]” not “speculation,

conjecture, or an otherwise unsupported personal opinion”).

But while neither the Government nor the IJ requested an

explanation from Sathanthrasa, the IJ discredited his stated

reason for his delayed departure on the ground that he “did not

explain why his family could not have simply sold their

personal property much earlier.” JA 38. Because we conclude

the IJ’s failure to weigh family reunification in the mix requires

a remand for full reconsideration of the discretionary denial of

asylum, Huang, 436 F.3d at 101, including the “reasons for the

denial,” 8 C.F.R. § 1208.16(e), there will be ample opportunity

on remand for the IJ to reconsider the past persecution

determination and to explore Sathanthrasa’s stated reason for

his delay in leaving Sri Lanka with these cases in mind.

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the hardship he would suffer if he could not reunite with his

wife and children. See Zuh, 547 F.3d at 512 (citation omitted);

Huang, 436 F.3d at 98–99, 102 (remanding to the agency when

the IJ abused his discretion by focusing only on negative

factors); Shahandeh-Pey, 831 F.2d at 1388–90.

The BIA then compounded these errors by concluding,

without analysis, that the IJ was aware of “the only [two]

positive factors” Sathanthrasa had identified: (1) that a “grant

of withholding of removal was not as beneficial to him” as a

grant of asylum; and (2) that “Tamils have suffered a

genocide.” JA 8. The implication from the BIA’s opinion and

the thrust of the Government’s argument on appeal is that

Sathanthrasa failed to carry his burden of identifying positive

factors that weighed in favor of a discretionary grant of asylum.

But while the burden of establishing entitlement to a

discretionary grant of asylum rests on the petitioner, Huang,

436 F.3d at 97, special considerations apply on reconsideration

pursuant to § 1208.16(e). At that point, not only has the

petitioner established a well-founded fear of persecution, but

also the IJ must consider family circumstances. 8 C.F.R.

§ 1208.16(e). An IJ who fails to follow those mandates—or

worse, disavows them—necessarily abuses her discretion. Cf.

Filja v. Gonzales, 447 F.3d 241, 254 (3d Cir. 2006). The

Government’s position to the contrary is particularly baffling

on the record before us: Why should we fault Sathanthrasa for

failing to present evidence of the hardships caused by family

separation when the IJ short-circuited that discussion by

stating, over the objections of Sathanthrasa’s counsel, that he

was “not concerned about that,” JA 138, and that it had

“nothing to do with [his] decision,” JA 139?

Finally, the explications of the IJ and BIA leave much to be

desired. The sole indication that the IJ understood his duty to

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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.

III. CONCLUSION

In sum, because the IJ did not reconsider the discretionary

denial of asylum in this case in the manner required by

§ 1208.16(e) and our case law, he abused his discretion.

Accordingly, we will grant Sathanthrasa’s petition, vacate the

BIA’s order, and remand to the BIA with instructions for the

IJ to properly reconsider the discretionary denial of asylum.

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