Albrecht Dürer, Public domain, via Wikimedia Commons
BIA HEADNOTE:
If a persecutor is targeting members of a certain family as a means of achieving some
other ultimate goal unrelated to the protected ground, family membership is incidental or
subordinate to that other ultimate goal and therefore not one central reason for the harm.
Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), reaffirmed.
PANEL: MALPHRUS, Deputy Chief Appellate Immigration Judge,
CREPPY and PETTY, Appellate Immigration Judges.
OPINION BY: JUDGE GARRY MALPHRUS, Deputy Chief Appellate Immigration Judge
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Let me explain the BIA’s rule:
1) In any “mixed motive” case, EOIR will find that the “non-covered motive” is primary and all others are “tangental” so that the claim will be denied.
2) EOIR will ignore “but for,” “proximate cause,” and any other established legal rules of causation to maximize asylum denials.
3) Facts are irrelevant unless they support denial.
In its rush to deny, the BIA basically invents a “presumption” that family based persecution is “tangential” to some other non-qualifying ground. The respondent then must “establish, by direct or circumstantial evidenc, that their family membership is more than incidental, tangential, superficial, or subordinate to other motives.”
When Congress added the “at least one central reason” language in 2005, they clearly intended to preserve a robust “mixed motive” doctrine by indicating that there could be “more than one” central motive. The BIA, however appears to be strangling the “mixed motive” language by intentionally, and often artifically, “subordinating” qualifying motives to non-qualifying ones!
And, of course, faced with a choice of adopting Circuit law that protects or that which rejects, the BIA invariably chooses the interpretation least favorable to the asylum applicant, as they did here.
I’m not the only member of the Round Table to remark on the BIA’s questionable performance.
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Judge “Sir Jeffrey” Chase says:
“This holding is contrary to asylum law generally and to multiple Fourth Circuit holdings to the contrary. I would also argue that it contradicts Second Circuit case law, and the Supreme Court’s holding regarding the meaning of “on account of” in Bostock v. Clayton County.”
Senior Advisor
Immigrant Defenders Law Group, PLLC
Former BIA Appellate Judge Lory D. Rosenberg quipped:
“Don’t confuse me with the facts.”
Law Office of Susan G. Roy, LLC
Princeton Junction, NJ
Member, Round Table of Former Immigration Judges
Retired Judge Roy said:
“This isn’t good—another Friday afternoon surprise!”
The poor performance of the BIA in establishing asylum precedents is a major contributing factor to disorder at the border and a dysfunctional, overly complicated, unduly restrictive, hopelessly backlogged, fundamentally unfair asylum adjudication system!
🇺🇸 Due Process Forever!
PWS
12-04-23